GIFT  or 


fflsst  Uirgmia  Ilnrasrsiig  Studies 

IN 

West  Virginia  history 

J.  M.  CALLAHAN,  EDITOR 


Constitutional  History 


Nos.  1  and  2 


Evolution  of  the  Constitution  of  West  Virginia 


BY   MAUD    FULCHER    CALLAHAN 


Department  "of  History  and  Political  Science 

MOBOMTOWN,    W.    TA. 

1909 


Prick  50  cents 


*1.50    TOR    SERIES    OB    SIX    NUMBER* 


o 


WEST  VIRGINIA  UNIVERSITY. 

Morgantown,    West    Virginia. 

A  modern  state  university  with  full  equipment  of  laboratories, 
libraries,  and  shops;  and  with  the  following  colleges  and  schools: 

Colleges  of  Arts  and  Sciences,  Engineering  and  Mechanic  Arts,  Ag- 
riculture, Law,  and  Medicine. 

Schools  of  Music,  Fine  Arts,  Commerce,  and  Military  Science  and 
Tactics. 

The  Summer  School,  and   Preparatory   Schools. 

Agricultural   Experiment  Station. 

Faculty    of    eighty    members;    1,250    students. 

The  campus  contains  fifty  acres,  and  the  location  is  one  of  the 
most   beautiful   in   America. 

Announcements  of  the  various  colleges  and  schools  or  catalogues 
of  the  University  as  a  whole,  will  be  sent  upon  request  to  Waitman 
Barbe,   or  to  D.   B.   PURINTON,  D.   D.,  L.U.   D.,  President. 

WEST     VIRGINIA     UNIVERSITY     STUDIES     IN     AMERICAN     HISTORY 

A  series  of  monographs  on  (1)  American  diplomatic  history  and 
foreign  policy  and  (2)  the  American  expansion  policy,  published  by 
the   head    of   the   department    of    history    and    political    science. 

These  studies  are  based  upon  materials  obtained  through  careful 
researches  in  the  official  manuscript  archives  at  Washington  and  by 
examination  of  other  original  materials  which  have  not  been  exploited 
by  historical  writers.  They  have  been  prepared  in  connection  with 
lecture   courses  and  seminar  work  for  graduate   students. 

The  first  number  treats  of  "Russo-American  relations  during  the 
American  civil  war."  (30c)  Several  numbers  are  devoted  to  inter- 
American  relations — especially  relations  with  South  America  and 
Central    America.     The    following    subjects    are    announced: 

Project    of    a    Spanish-American    confederation,    1856. 

American-Mexican    diplomatic    relations,    1853-60. 

Some    forgotten    applications    of    the    Monroe    doctrine. 

Evolution    of   Seward's   policy   against    the   French    in   Mexico.  (75c). 

Evolution   of  American   policy   in   the   West  Indies. 

Spanish-American    policy    during    the    American    civil    war. 

The    Alaska    purchase    and    America-Canadian    relations.  (50c). 

Background   of   the   American   policy  in   Panama. 

Other   subjects   will  be  announced   later. 

UNIVERSITY    STUDIES    IN    WEST    VIRGINIA    HISTORY 

A  related  series  of  monographs  treating  the  most  important 
phases  of  the  general  development  of  the  state:  constitutional, 
political,  institutional  and  industrial;  legislative  and  regulative. 
Prepared  by  advanced  students  who  have  had  training  in  modern, 
scientific  methods  of  historical  research.  The  first  numbers  trace  the 
"Evolution  of  the  constitution  of  West  Virginia"  (50c).  Other  num- 
bers, on  transportation,  education  and  taxation,  and  on  smaller  sub- 
jects of  local  history  are  in  preparation. 

Department    of    History    and    Political    Science, 
West    Virginia   University,    Morgantown,    W.    Va. 

Copyright,  1909. 
J.  M.  Callahan. 


Evolution  of  the  Constitution  of  West  Virginia 


I.     Introduction. 

West  Virginia,  the  only  distinctively  mountainous  state  of  the 
Appalachian  region,  and  the  only  state  whose  formation  represents 
a  logical  conclusion  of  the  sectionalism  which  existed  before  the 
civil  war  in  all  the  southern  states  from  Pennsylvania  southward 
to  Florida,  has  a  constitutional  history  somewhat  unique.  Its 
destiny  to  form  a  separate  state  was  largely  determined  by  the 
flow  of  its  rivers  in  an  opposite  direction  to  the  flow  of  the  tide 
water  rivers,  and  was  foreshadowed  in  the  different  political  ideas 
of  the  West — causing  it  to  give  a  proportionately  larger  vote  than 
the  East  for  the  ratification  of  the  national  constitution  in  1788, 
to  oppose  the  Virginia  resolutions  of  1798,  to  antagonize  the  elec- 
tion of  Jefferson  in  1801,  to  favor  the  American  system  as  a 
national  policy  and  to  advocate  the  establishment  of  free  schools 
and  the  further  democratization  of  social  and  political  institutions. 
Showing  a  growing  influence  in  determining  the  constitutional  de- 
velopment of  the  mother  state  before  the  war  and  its  determination 
to  fight  the  mother  state  in  order  to  preserve  the  Union,  the  New 
Dominion  still  retains  in  its  constitution  many  evidences  of  a  sur- 
viving sentiment  in  favor  of  the  institutions  of  the  Old  Dominion. 

IT.     A  Half  Century  Under  the  Constitution  of  the  Revolution. 

The  first  constitution  of  Virginia  was  adopted  on  June  29, 
1776  when  there  were  within  the  limits  of  the  present  state  of 
West  Virginia  only  Hampshire  and  BerkeJley  counties  and  the  dis- 
trict of  West  Augusta.  This  constitution!  established  an  annual 
general  assembly  of  two  houses  the  members  of  which  were  elected 
by  the  limited  number  of  people  who  had  the  right  of  suffrage. 
The  house  of  delegates,  the  members  of  which  were  elected  each 


1.      Poore,    Charters    and    Constitutions    of    the    United    States,    vol. 
2,  pp.  1910-12.  ,      , 


3GG12<. 


2  Studies  in  West  Virginia   Histoby. 

year,  replaced  the  old  house  of  burgesses  and  with  slight  exception* 
retained  the  old  system  of  representation:  two  representatives 
from  each  county,  and  two  from  the  district  of  West  Augusta, 
(and  one  from  both  Williamsburg  and  Norfolk).  The  general  as- 
sembly was  authorized  to  grant  to  each  new  county  which  it  might 
create  two  delegates,  and  to  use  its  discretion  in  allowing  repre- 
sentation to  new  towns;  but  there  was  a  provision  for  dropping  the 
representation  of  any  town  whose  population  decreased  until  for 
seven  consecutive  years  its  voting  population  was  less  than  one- 
half  that  of  a  county. 

The  senate  was  composed  of  twenty-four  members  chosen 
for  a  term  of  four  years  from  twenty-four  districts,  and  was  made 
a  rotating  body  by  a  provision  for  the  election  of  six  members  each 
year.  The  apportionment  was  purely  arbitrary  and  without  pro- 
vision for  future  reform. 

The  elective  franchise  remained  as  exercised  since  the  law  of 
1736"5  and  was  confined  to  freeholders  who  had  been  in  possession 
of  their  freehold  at  least  one  whole  year  before  the  issue  of  the 
writ  for  the  election  at  which  they  wished  to  vote. 

With  the  election  of  the  members  of  the  general  assembly  the 
voice  of  the  voting  population  ceased.  The  governor,  treasurer, 
the  eight  privy  councilmen,  the  secretary,  the  attorney-general,  and 
the  judges  of  all  the  superior  courts  were  chosen  by  joint  ballot 
of  the  two  houses  of  the  general  assembly;  the  governor  and 
treasurer  were  chosen  annually;  the  privy  council  was  subject  to 
the  removal  of  two  of  their  number  every  three  years  by  the 
"scratch"  of  the  assembly;  the  secretary,  the  attorney-general  and 
the  judges  served  during  good  behavior. 

The  people  had  little  share  in  local  government.  The  self  per- 
petuating county  courts*  had  general  management  of  all  local 
affairs.  These  courts  constitutionally  appointed  the  sheriff,  the 
coroner  and  the  clerk  of  the  county;  they  had  the  statutory  privi- 
lege of  appointing  all  other  civil  officers  of  the  county  and  all  mili- 
tary officers  under  the  grade  of  brigadier-general,  and  of  laying  all 
taxes  for  county  purposes  and  of  expending  them  as  they  saw  fit; 
and,  with  all  these  powers,  they  were  responsible  to  no  one  for 
their  actions. 


2.  Jamestown  and  the  college  of  William  and  Mary  were  no  longer 
granted   representation. 

3.  Hen  in  g  vol.  4,  pp.  470,  476.  A  freehold  was  one  hundred  acres 
of  uncultivated  land  without  a  house,  twenty-five  acres  of  improved 
land   with    a    house,   or   a  house   and   lot   in    town. 

4.  Jefferson's  Works,  vol.  7,  p.  10. 


Evolution  of  the  Constitution.  3 

The  development  of  West  Virginia  for  the  half  century  after 
the  revolution  produced  new  problems  for  the  Old  Dominion. 
Before  the  close  of  the  eighteenth  century  the  population  in  the 
region  now  known  as  West  Virginia  had  begun  to  grow  rapidly. 
In  the  Virginia  convention  of  June  2,  1788,  which  was  called  to 
ratify  or  reject  the  federal  constitution,  it  was  represented  by  six 
new  counties  which  had  been  formed  from  the  district  of  West 
Augusta:  Monongalia  and  Ohio,  in  1776,  Greenbrier  in  1777,  and 
Harrison,  Hardy  and  Randolph  in  1784,  1785  and  1786  respect- 
ively. This  number  of  counties  had  increased  to  thirteen  in  1800 
by  the  formation  of  Pendleton  in  1787,  Kanawha  in  1789,  Brooke 
in  179  6,  Wood  in  1798  and  Monroe  in  1799.  These  thirteen  be- 
came sixteen  in  1810  by  the  addition  of  Jefferson  in  1801,  Mason  in 
1804  and  Cabell  in  1809.  To  these  counties  four  new  ones  were 
added  before  1820:  Tyler  in  1814,  Lewis  in  1816,  Nicholas  in 
1818  and  Preston  in  1818.  By  the  end  of  the  next  decade  a  total 
of  twenty-three  counties  was  completed  by  the  formation  of  Morgan 
in  1820,  Pocahontas  in  1821  and  Logan  in  1824.  The  white  popu- 
lation had  increased  from  50,593  in  1790  to  70,894  in  1800,  to 
93,355  in  1810,  to  120,236  in  1820,  and  to  157,084  in  1830.5 

During  these  years,  and  partly  as  a  result  of  changing  condi- 
tions, the  defects  in  the  constitution  became  very  marked.  These 
defects  were  early  noticed  by  Jefferson  who  desired  a  state  Con- 
stitutional convention  to  remedy  them.  Commenting  on  the  con- 
stitution, in  1782  he  wrote:  "The  majority  of  the  men  in  the  state 
who  pay  and  fight  for  its  support  are  unrepresented  in  the  legis- 
lature— the  roll  of  freeholders  entitled  to  vote  not  including  gen- 
erally the  half  of  those  on  the  roll  of  the  militia  or  of  the  tax 
gatherers.  Among  those  who  share  the  representation  the  shares 
are  unequal."  To  show  some  of  the  inequalities  which  existed  even 
at  that  early  date  between  the  four  sections  of  the  state  from  the 
coast  to  the  Ohio  he  prepared  the  following  table:* 

Fighting   men  Delegates  Senators 

East  of  river  falls 19,012              71  12 

Falls  to   Blue   Ridge 18,828              4«  8 

Blue    Ridge    to    Alleghenies.  .    7,673              16  2 

Trans-Allegheny     4,458              16  2 

The  inequality  of    tke  county    system    of    representation    is    well 
shown  by  a  comparison  of  the  counties.     Tn  1800  Warwick  with  a 

5.  Census  reports  for  1790,  1800.  1810,  1820  and  1830, 

6.  Jefferson's  Works,  vol.   8,   p.   360. 


4  Studies  in  West  Virginia   History. 

white  population  of  614  and  had  two  members  in  the  house  of  dele- 
gates while  at  the  same  time  Berkeley  with  a  white  population  of 
17,832  had  but  two  members  in  the  lower  house.  The  ine'quality 
was  equally  noticeable  in  the  senate.  In  1815  the  entire  West  with 
a  free  white  population  of  about  233,469,'  two-fifths  that  of  the 
state,  was  represented  by  four  senators;  and  at  the  same  time  the 
East  containing  the  other  three-fifths  of  the  wThite  population.  342-781, 
was  represented  by  twenty  senators. 

Several  attempts  to  secure  adjustment  were  unsuccessful.  In 
the  house  of  delegates,  in  the  May  session  of  the  assembly  of  1784, 
a  petition  from  Augusta  county  asking  for  a  constitutional  conven- 
tion was  the  subject  of  a  two  days  debate;  and  although  Madison 
strongly  advocated  it,  a  bill  for  a  convention  failed — largely 
through  the  violent  opposition  of  Patrick  Henry.? 

After  1790  petitions  praying  for  a  reform  in  representation  and 
suffrage  were  presented  at  almost  every  session  of  the  assembly. 
From  the  counties  of  Patrick  and  Henry  these  petitions  were  ex- 
pected regularly  at  the  commencement  of  each  session.  In  the  ses- 
eion  of  1806  a  bill  for  submitting  to  the  people  the  proposition  to 
call  a  constitutional  convention  passed  the  house  but  was  indefin- 
itely postponed  in  the  senate  through  the  iafluence  of  prudent  men 
who  feared  the  political  bitterness  of  the  times. » 

In  1814,  a  constitutional  reform  bill  which  provided  for  ex- 
tension of  suffrage,  reapportionment  of  representation,  and  the  re- 
duction of  the  total  number  composing  the  house  of  delegates,  was 
rejected  in  the  house  by  a  slight  majority.  The  next  year,  a  bill 
was  introduced  into  the  house  providing  for  a  rearrangement  of  the 
senatorial  districts  on  a  white  basis.  The  fight  was  largely  sec- 
tional. The  western  members  unsuccessfully  urged  the  passage  of 
the  bill.  Eastern  constitutional  lawyers  in  the  house  held  that 
the  districts,  created  by  the  same  power  that  made  the  constitu- 
tion, could  be  altered  only  by  a  constitutional  convention.  This 
doctrine  the  westerners  then  determined  to  put  into  practice.  On 
August  19,  1816,  a  convention  composed  of  representatives  from 
thirty-six  counties  (twenty-four  of  which  were  from  the  region  west 
of  the  Blue  Ridge)  met  at  Staunton  and  sent  a  memorial  to  the 
general  assembly  requesting  the  passage  of  a  bill  for  submitting 
to  the  people  the  question  of  calling  a  constitutional  convention. 
Though  the  house  was  successful  in  securing  the  passage  of  a  bill 


7.  Madison's  Writings,  vol.   1,  p.   87. 

8.  Debates    Virginia    Constitutional     Convention,     1829-30,     pp.     81, 
and   421.  '  '         ;  f\ 


Evolution  of  the  Constitution.  5 

calling  a  convention  to  change  the  constitution  by  amendments 
which  would  extend  the  right  of  suffrage,  equalize  the  land  tax, 
and  equalize  representation  on  the  basis  of  the  white  population, 
its  program  for  securing  a  convention  and  larger  western  repre- 
sentation was  frustrated  in  the  senate.  Then  the  legislature,  re- 
versing the  doctrine  held  by  the  constitutional  lawyers  in  1815 
passed  a  bill  equalizing  the  senatorial  districts  according  to  the 
white  population  of  the  old  census  of  1810  which  no  longer  rep- 
resented the  true  population  of  the  West.s  By  this  reapportion- 
ment, the  West  got  nine  instead  of  four  senators,  while  the  num- 
ber from  the  East  was  reduced  from  twenty  to  fifteen. 

Though  for  a  time  public  agitation  ceased,  by  1824  the  equal- 
ization of  representatives  in  the  house  of  delegates  on  the  white 
basis  became  the  subject  of  newspaper  controversy  and  general  dis- 
cussion which  resulted  in  a  second  meeting  at  Staunton,  on  July 
25,  1825,  attended  by  upwards  of  one  hundred  friends  of  reform. 
This  convention  passed  resolutions  in  favor  of  several  reforms: 
representation  in  the  house  according  to  white  population;  the  re- 
duction of  the  total  number  of  delegates  in  the  house;  the  exten- 
sion of  the  right  of  suffrage;  the  abolition  of  the  executive  council, 
and  a  more  responsible  executive.  These  resolutions,  forwarded 
to  the  general  assembly,  in  the  three  following  sessions  were  the 
sub  jet  of  discussions  which  finally  (in  January  1828)  resulted  in 
the  passage  of  a  bill  for  submitting  the  question  of  a  constitutional 
convention  to  a  vote  of  the  freeholders.  The  election  returns 
showed  that  the  convention  was  favored  by  the  almost  unaminous 
vote  of  the  West  and  opposed  by  over  one-half  the  vote  of  the 
East. 

m.     The  Constitutional  Convention  of  1829-30. 

The  convention  which  met  at  Richmond  on  October  5,  1829, 
was  an  august  assemblage  composed  of  ninety-six  of  the  most 
prominent  men  of  the  state  (four  members  from  each  senatorial 
district) — eighteen  of  whom  were  from  counties  within  the  present 
limits  of  West  Virginia.  Its  dominating  spirit  of  sectionalism  was 
largely  due  to  the  geographic  and  economic  conditions  which  foi 
years  the  defects  of  the  old  constitution  had  aggravated.  The  two 
sections  agreed  on  the  acceptance  of  the  bill  of  rights;  but,  with 
their  radically  divergent  ideas,  they  clashed  on  the  practical  appli- 
cation of  the  principles  of  government. 


9.     Ibid  pp.   82   and 


6  Studies   in  West   Virginia   History. 

Practically  all  the  time  of  the  convention  (October  5,  1&23  to 
January  15,  1830),  was  consumed  by  debates  on  two  questions: 
representation  and  suffrage.  On  the  question  of  suffrage  the 
thirty-six  delegates  from  the  district  west  of  the  mountains  stood 
solidly  for  white  population  as  the  basis  for  both  houses,  in  oppo- 
sition to  the  East  which  favored  a  representation  based  on  white 
population  and  taxation  combined.  Madison,  Marshall  and  Monroe 
defended  the  property  basis  on  the  grounds  that  the  state  was  the 
conservator  of  property.  In  the  debates,  when  the  eastern  mem- 
bers demanded  reasons,  based  on  facts  and  conditions,  for  what 
they  termed  "the  most  crying  injustice  ever  attempted  in  any 
land"  against  property  rights,  the  westerners  continued  to  cite  the 
bill  of  rights  and  the  abstractions  of  Jefferson. i<>  In  answer  to  the 
statement  that  nearly  three-fourths  of  the  tax  had  been  paid  by  the 
counties  east  of  the  Blue  Ridge,  the  West  asked  who  were  the  men 
who  had  fought  the  battles.  When  Judge  Upshur  from  the  Eastern 
Shore,  in  a  speech  lasting  the  greater  part  of  two  days,  endeavored 
to  show  that  the  law  of  the  majority  came  from  no  source — not 
from  the  law  of  nature,  nor  from  the  exigencies  of  society,  nor 
from  the  nature  and  necessity  of  government,  nor  from  any  con- 
stitutional source — Philip  Doddridge  of  Brooke  answered  him  by 
asking:  if  the  majority  are  not  possessed  of  the  right  or  power  to 
govern,  "whence  does  the  gentleman  derive  the  power  in  question 
to  the  minority?"  When  Randolph,  in  a  high  key,  exclaimed  that 
if  he  were  not  too  old  to  move  he  would  never  live  under  King 
Numbers,  Campbell  from  the  Ohio  extolled  King  Numbers  as  the 
most  dignified  personage  under  the  canopy  of  heaven.  During  the 
debate  the  white  laboring  farmers  in  the  western  part  of  the  state 
were  designated  "peasants"  holding  the  same  place  in  political 
economy  as  the  slaves  of  the  tide-water  East.  There  were  reports 
that  the  western  members  would  secede  from  the  convention.  To 
allay  sectional  feeling  Monroe  urged  mutual  concessions  and  sug- 
gested a  white  basis  for  the  house  and  a  mixed  basis  for  the 
senate." 

Thus  the  debate  continued  until  finally  a  plan  of  apportion- 
ment by  districts,  based  on  no  principle  and  opposed  by  the  West, 
was  adopted. 

The  extension  of  suffrage  was  most  strongly  advocated  by  the 


10.  Debates  of  Convention,  1829-30,  pp.  53,  54,  and  57.  F.  N. 
Thorpe:  The  political  value  of  state  constitutional  history,  (Iowa 
School   Journal,    January   1903,    p.    20). 

11.  Debates  of  Convention,  pp.  66  et  seq.,  123,  151,  321,  and  359. 


Evolution  of  the  Constitution.  T 

western  people  who  quoted  Jefferson  in  favor  of  free  manhood 
suffrage,  but  who  were  promptly  notified  by  Randolph  that  the  East 
was  "not  to  be  struck  down  with  the  authority  of  Mr.  Jefferson." 
At  this  time,  in  Virginia  (the  only  state  of  the  twenty-four  in  the 
Union  which  still  adhered  strictly  to  freehold  suffrage),  in  a  total 
of  143,000  free  white  males  there  were  100,000  free  white  citizens 
paying  taxes  to  the  state — of  which  about  40,000  were  freeholders 
and  60,000  were  men  who  owned  personal  property." 

Having  failed  in  the  effort  for  manhood  suffrage,  the  West 
fought  vigorously  ,  but  unsuccessfully,  to  extend  the  suffrage  at 
least  to  taxpayers.  Several  easterners,  arguing  that  much  of  the. 
land  in  the  West,  fit  only  for  a  lair  of  wild  beasts,  was  not  worth 
a  mill  per  acre  and  would  never  be  of  any  value,  were  determined 
to  draw  the  line  of  suffrage  restriction  even  closer  by  fixing  a 
minimum  value  for  a  freehold.  Throughout  the  East  the  feeling 
was  pretty  general  that  there  should  be  some  local  attachment. 
Monroe  said  that  the  elective  franchise  should  be  confined  to  an 
interest  in  the  land,  and  Randolph  approvingly  agreed  that  "terra 
firma"  was  the  only  safe  ground  in  the  commonwealth  on  which 
the  right  of  suffrage  could  stand.  "The  moment  you  quit  the 
land,"  said  he,  "you  find  yourself  at  sea  without  compass,  without 
landmarks,  or  polar  star."" 

The  convention  finally  agreed  to  lessen  the  requirements  of  a 
freehold,  and  to  extend  the  suffrage  to  leaseholders  and  house- 
keepers who  paid  taxes. 

Philip  Doddridge,  typifying  the  western  democratic  sentiment 
moved  that  the  executive,  unhampered  by  a  council,  should  be 
elected  by  the  people  and  responsible  to  them.i*  Although  at  that 
time  eighteen  states  elected  their  governors  by  popular  vote,  his 
motion  was  lost.  Mr.  Naylor  of  Hampshire  proposed  that  the  office 
of  sheriff  should  be  filled  by  the  people  instead  of  by  the  county 
court  whose  members  were  accustomed  to  give  this  office  to  them- 
selves in  rotation,  the  one  receiving  it  selling  it  at  public  auction 
to  the  highest  bidder;  but  this  recommendation  met  the  formidable 
and  successful  opposition  of  men  as  influencial  as  Giles  and  Leigh 
who  thought  such  an  innovation  would  disturb  the  county  court 
system  which  to  them  was  "the  most  valuable  part  of  the  constitu- 
tion."    In   the   convention   there   seemed   to   be   an   abhorrance   of 


12.  Ibid,  pp.  355,  and  356. 

13.  Ibid,  pp.   347,  428-43. 

14.  Ibid,    p.    464.     W.    T.    Willey:     Life    of    Philip    Doddridgre,    pp. 
55-57, 


8  Studies   in   West   Virginia   History. 

overlegislation  and  to  remedy  this  Mr.  George  of  Tazewell  proposed 
that  the  assembly  should  meet  but  once  in  two  years.  The  motion 
was  lost,  many  perhaps  feeling  with  Randolph  that  as  the  legis- 
lature of  the  United  States  met  every  year  the  Virginia  assembly 
should  meet  annually  also  in  order  to  watch  it.  Resolutions  sub- 
mitted by  western  members,  looked  toward  the  encouragement  of 
public  education,  were  opposed  by  eastern  men,  some  of  whom 
feared  the  adoption  of  a  system  by  which  the  people  of  the  East 
would  be  taxed  for  the  education  of  the  children  of  the  West.  Nor 
did  the  West,  after  failing  to  realize  so  many  of  its  longed  for  re- 
forms, have  any  prospect  of  realizing  them  in  the  early  future. 
The  proposition  that  there  should  be  a  constitutional  provision  for 
amendment  received  but  twenty-five  votes.  In  opposing  this  propo- 
sition, John  Randolph  declared  that  he  would  as  soon  think  of 
introducing  a  provision  of  divorce  in  a  marriage  contract;  and  al- 
though he  was  strongly  against  the  constitution,  he  exclaimed: 
"If  we  are  to  have  it,  let  us  not  have  it  with  the  death  warrant 
on  its  very  face."i5 

The  completed  constitution,  a  precedent  for  all  later  consti- 
tutions of  the  South  before  1860,i«  provided  for  several  minor 
reforms.  Under  it  the  number  of  delegates  was  reduced  from  214 
to  134  (not  to  exceed  150),  the  county  system  of  representation 
was  abolished  and  representatives  were  apportioned  according  to 
districts — which  were  so  arranged  that  the  apportionment  was 
more  nearly  in  accord  with  the  respective  population  of  the 
counties;.  Thirty-one  of  the  representatives  were  assigned  to  the 
twenty-six  counties  west  of  the  Alleghenies.  Of  these  thirty-one, 
the  twenty-three  counties  now  in  West  Virginia  were  given  twenty- 
nine.  However,  as  no  reapportionment  could  be  made  before  1841, 
and  then  not  unless  two-thirds  of  the  assembly  agreed,  and  since 
the  East  had  a  large  majority  in  the  legislature,  the  chances  for 
a  reapportionment  were  small.  An  age  qualification  of  twenty-five 
years  was  added  to  the  qualifications  of  delegates.  The  number 
of  senators  was  increased  from  twenty-four  to  thirty-two,  not  to 
exceed  thirty-six.  The  state  was  divided  into  two  great  senatorial 
districts  separated  by  the  Blue  ridge.  The  western  district  which 
contained  the  larger  number  of  electors  was  given  only  thirteen 
members  while  the  eastern  was  given  nineteen.  The  age  qualifi- 
cation for  senators  was  changed  from  twenty-five  to  thirty  years. 
The  right    of    suffrage    was    extended    to    all    white    male    citizens 

15.     Ibid.  pp.  487,   817,   44,   359,   378,   787,   789.   and  791. 
18.     F.  N.  Thorpe:     Constitutional  History  of  the  American  people, 
vol.   2,  p.   463. 


Evolution   of  the  Constitution.  9 

twenty-one  years  of  age  who  were  qualified  to  vote  under  the  old 
constitution  and  laws,i7  to  all  who  possessed  a  $25.00  freehold,  a 
$25.00  joint  tenantship,  a  $50.00  reversion,  a  five-year  leasehold  of 
an  annual  rental  value  of  $20.00,  and  to  all  tax-paying  house- 
keepers who  were  heads  of  families;  but  the  right  was  granted 
in  terms  the  interpretation  of  which  proved  very  difficult.^  There 
was  a  provision  for  the  viva  voce  vote — characteristic  of  the  South. 

The  term  of  the  executive  was  increased  to  three  years,  and 
he  was  ineligible  for  the  next  three  years.  Contrary  to  the  con- 
stitution of  1776,  which  left  all  qualifications  for  the  executive  to 
the  general  assembly,  the  new  constitution  contained  several 
qualifications:  thirty  years  of  age,  a  native  citizen  of  the  United 
States,  or  a  citizen  at  the  time  the  federal  government  was  estab- 
lished, and  a  citizen  of  Virginia  for  five  years  next  preceding  his 
election.  The  executive  council  was  a  rotary  body  consisting  of 
three  instead  of  eight  members  chosen  by  the  assembly,  and  the 
senior  councilman  was  authorized   to  act  as  lieutenant  governor.^ 

This  constitution,  submitted  to  the  people,  in  April,  1830,  was 
ratified  by  a  vote  of  26,055  to  15,563.  The  vote  within  the  bounds 
of  West  Virginia  stood  1,383  for  ratification  and   8,365  against  it. 

Naturally,  the  constitution  of  1830  worked  unfavorably  for 
the  West.  The  vast  natural  resources  of  West  Virginia — forests 
of  excellent  timber,  oil  and  natural  gas,  and  16,000  square  miles 
of  bituminous  coal  in  workable  seams2° — remained  undeveloped  be- 
cause of  the  short  sightedness  of  eastern  leaders.  The  West,  with 
no  railroads  and  no  canals,  sorely  needed  improvements;  but,  de- 
spite much  public  agitation  and  vigorous  struggles  in  the  general 
assembly,  it  had  to  remain  content  with  paltry  appropriations  for 
turnpikes,  obtained  by  log  rolling,  while  vast  sums  were  spent  on 
badly  managed  improvements  which  were  undertaken  in  the  East. 
Under  this  constitution  the  present  territory  of  West  Virginia  re- 
ceived no  public  buildings,  had  no  representatives  in  the  United 
States  senate  and  had  no  opportunity  to  furnish  the  governor 
for  the  state  before  the  appointment  of  Joseph  Johnson  in   1850. 

Under  these  conditions  it  is  not  surprising  that  equal  repre- 
sentation on  the  white  basis  continued  to  be  the  western  cry;   but, 


17.  Hening  vol.   12.  p.   120.     The  law  of  1785   defined  a  freehold  as 
twenty-five  acres  of  improved  or  fifty  acres  of  unimproved  land. 

18.  J.    A.    C.    Chandler:      The    history    of    suffrage    in    Virginia    (in 
Johns    Hopkins   University   Studies,    nineteenth    series). 

19.  Poore,  vol.   2,  pp.   1912-1919. 

20.  Hon.    George    C.    Sturgiss    in    Congressional    Record,    April    5, 
1909,   p.    859.  "  '   ; 


10  Studies   in   West   Virginia   History. 

after  the  indefinite  postponement  of  the  subject  by  the  legislature, 
which  had  the  power  to  reapportion  the  state  after  1841,  west- 
erners, with  sectional  feeling  more  pronounced,  finally  settled  into 
a  firm  determination  to  endure  the  evils  of  the  constitution  until 
after  the  census  of  1850,  satisfied  that  the  excess  of  white  popula- 
tion west  of  the  mountains  would  be  so  great  that  the  Bast  could 
no  longer  with  any  show  of  justice  refuse  them  their  proper  share 
in  the  general  assembly.21 

The  basis  of  representation  was  the  most  prominent  question 
between  the  two  sections.  The  easterners,  who  affirmed  not  very 
reverently  that  to  the  white  basis  they  could  not  and  would  not 
yield,  gradually  advocated  many  of  the  reforms  which  had  so 
startled  them  when  proposed  by  western  members  in  the  conven- 
tion of  1829-30.  They  became  willing  to  extend  the  suffrage  to 
every  free  white  man  over  twenty-one,  allowing  him  to  vote  once 
where  he  resided  and  no  where  else;  they  favored  a  reform  of  the 
county  court  and  the  judicial  system,  the  election  of  the  governor 
by  the  people,  and  a  more  rigid  accountability  of  all  the  govern- 
mental departments.  Through  their  newspapers  and  through  the 
governors'  messages  they  urged  a  constitutional  convention  to  bring 
about  these  reforms. 22  On  the  other  hand  the  westerners,  who 
had  favored  these  reforms  for  years  were  unwilling  to  vote  for  a 
convention  which  was  not  organized  on  the  white  basis  and  which 
did  not  promise  to  equalize  representation. 

In  the  legislature,  the  West  was  again  defeated  by  the  pas- 
sage of  a  convention  bill  that  adopted  for  the  convention  a  mixed 
basis  which  gave  the  East  a  majority  of  seventeen  in  the  conven- 
tion (The  white  basis  would  have  given  the  West  a  majority  of 
13).  In  the  western  papers  this  defeat  was  attributed  to  the  votes 
of  western  members  who  were  anxious  to  secure  a  convention  on 
any  basis.  The  feeling  in  the  trans-Allegheny  region,  however, 
was  strongly  against  "that  abominable  convention  bill"  as  it  was 
called  in  the  Parkersburg  Gazette,  and  the  people  were  urged  to 
repudiate  those  traitors  to  the  interests  of  the  West  and  re- 
publican principles  who  had  voted  for  the  bill  with  no  provision  for 
a  white  basis.  Anti-convention  meetings  were  held  in  many  of 
the  counties  and  the  people  were  advised  to  vote  against  the  con- 
stitution. The  Parkersburg  Gazette,  exhorting  the  West  to  pre- 
sent an  unbroken  front  in  opposition  to  the  eastern  scheme  to  avoid 


21.  Monongalia    Mirror,    March    16,    1850.     Speech    of    Johnson,    of 
Taylor  Co.,  in  House  of  Delegates,  March  11,  1850. 

22.  Ihid,   Dec.    15,    1849,    Governor    Floyd's    message    to    general    as- 
sembly,  Dec.   4,   1849   and  Richmond   Enquirer,  Dec.   3,   1849. 


Evolution  of  the  Constitution.  11 

the  reform  most  needed,  said  that  it  would  then  remain  to  be  seen 
whether  the  East  would  have  the  temerity  to  stake  the  integrity  of 
Virginia  upon  her  dogma  of  "might  makes  right."23  At  the  April 
elections,  although  the  majority  vote  was  in  favor  of  the  conven- 
tion, most  of  the  trans-Allegheny  counties  voted  against  it. 

In  the  August  elections  for  selecting  delegates  to  the  conven- 
tion the  basis  question  was  the  issue.  Not  a  member  elected  from 
the  West  favored  the  mixed  basis  and  not  a  member  elected  from 
the  East  except  Henry  A.  Wise  opposed  it.  Of  the  135  members 
elected  34  were  from  the  present  state  of  West  Virginia. 

IV.     The  Constitution  of  1850. 

The  convention  which  met  October  14,  1850,  and  adjourned 
November  4,  to  await  census  data,  reconvened  on  January  6,  1851. 
On  February  6,  the  committee  on  basis  and  apportionment  having 
found  itself  equally  divided  in  opinion,  submitted  two  reports.  The 
one,  favored  not  only  by  the  western  members  of  the  committee  but 
by  every  western  delegate,  advocated  the  white  population  as  the 
basis  for  the  apportionment  of  both  houses;  the  other,  having  the 
almost  equally  unaminous  support  of  the  East,  advocated  white 
population  and  taxes  combined  as  a  basis  for  both  houses  (so  that 
every  seventy  cents  of  taxes  would  have  a  representation  equal  to 
one  white  person).  Every  days*  from  February  17  to  May  10, 
in  committee  of  the  whole,  the  convention  discussed  the  reports  of 
this  committee  and  the  various  substitutes;  but  no  conclusion  was 
reached.  The  East  had  the  power  to  adopt  its  basis,  but  feared 
that  if  it  should  do  so  the  West  would  secede  from  the  convention. 
Each  side  clung  to  its  demands  with  bull-dog  tenacity.  Feeling 
was  so  high  that  on  May  10  the  convention  was  forced  to  adjourn 
until  the  following  day.  Then  a  compromise  committee  was  ap- 
pointed to  prevent  a  split.25  Finally,  the  West,  unflinchingly  re- 
fusing to  consider  any  compromise  which  did  not  eventually  pro- 
vide for  the  white  basis  or  for  submitting  the  basis  question  to  the 
people,  partially  gained  its  point.  In  the  plan  adopted  the  ap- 
portionment for  the  house   of  delegates   was  based   on   the  white 


23.  Monongalia  Mirror,  April  20,  1850. 

24.  One  session  a  day  proved  insufficient  for  the  discussions.  The 
reporter  struck  for  higher  wages,  and  the  members  enamored  with 
their   own   verbocity  agreed   to   his  demands. 

25.  Journal,  Acts  and  Proceedings  of  Virginia  Convention,  1850- 
51,  pp.  205,  and  206.  J.  A.  C.  Chandler:  Representation  in  Virginia 
(J.  H.  U.  Studies,  14th.  series),  pp.  64-71. 


12  Studies   in  West  Virginia   History. 

population  according  to  the  census  of  1850  (giving  to  the  West 
eighty-three  delegates  and  to  the  East  sixty-nine).  The  appor- 
tionment in  the  senate  was  arbitrarily  fixed  giving  thirty  to  the 
East  and  twenty  to  the  West,  but  in  the  plan  there  was  a  provision 
that  either  the  legislature  should  make  a  reapportionment  on  the 
white  basis  in  1865  or  the  governor  should  submit  the  basis  ques- 
tion to  the  people.  Any  qualified  voter  of  twenty-five  years  of  age, 
except  a  minister  of  the  gospel,  or  an  officer  of  a  banking  corpera- 
tion,  or  an  attorney  for  the  commonwealth,  was  eligible  for  elec- 
tion to  the  general  assembly.  The  delegates  were  elected  bien- 
nially; half  of  the  senators  were  elected  every  two  years  and  served 
four   years. 26. 

With  the  amicable  settlement  of  the  question  which  for  so 
many  years  had  been  the  great  disturbing  element,  the  convention 
was  free  to  express  that  democratic  spirit  of  the  times  which  had 
been  gradually  breaking  down  old  barriers,  and  which  Virginia  had 
not  been  able  to  resist  as  is  shown  by  the  work  of  the  legislature 
of  1849  which  abolished  imprisonment  for  debt,  and  granted  to 
women  the  right  to  make  a  will. 

The  provision  extending  suffrage  to  every  white  male  over 
twenty-one,  two  years  resident  in  the  state  and  twelve  months  in 
the  district  where  he  votes,  not  only  greatly  enlarged  the  number 
enjoying  the  elective  franchise  but  abolished  the  crying  abuse  of 
double  and  treble  voting.  A  man,  who  before  could  vote  in  every 
district  in  which  he  held  real  or  pretended  property  which  he  could 
reach  by  fast  driving  or  riding  on  election  day,  could  now  vote 
only  in  the  district  in  which  he  resided. 2?  Although  the  method  of 
voting  was  still  viva  voce,  dumb  persons  were  permitted  the  use 
of  the  ballot — a  provision  which  was  evidently  suggested  by  the 
precedent  in  the  Kentucky  constitution  of  1850. 

The  executive  council  was  abolished,  the  judicial  system  re- 
formed, and  the  county  court  reorganized.  The  governor,  lieu- 
tenant governor  (for  a  term  of  four  years),  the  twenty-one  circuit 
judges  (for  a  term  of  eight  years),  the  five  judges  of  the  court  of 
appeals  (for  a  term  of  twelve  years)  and  all  local  officers — the 
justices  of  the  peace  and  attorney  for  the  commonwealth  (for  a 
term  of  four  years),  the  clerk  of  the  court  and  the  surveyor  (for 
a  term  of  six  years)  and  the  sheriff  and  commissioners  (for  a  term 
of  two  years) — were  elected  by  the  people.  Provision  was  made  for 
the   payment   of   jurors   who   previously   had   been   chosen    from   the 


26.  Poore,  vol.   2,  pp.  1919-1937. 

27.  Governor's   message   to   the    general   assembly,    December,    1849. 
J.    A.    C.    Chandler:      History    of    Suffrage    in    Virginia,    pp.    41-45. 


Evolution  of  the  Constitution.  13 

loungers  within  reach  of  the  sheriff's  voice  the  day  the  court  opened 
and  who  had  served  without  compensation.38 

The  spirit  of  the  time  was  also  reflected  in  restrictions  on  the 
legislature,  both  houses  of  which  were  now  for  the  first  time  given 
equal  power  of  legislation.  The  general  demand  throughout  the 
United  States  for  less  frequent  sessions  of  the  legislature  was  re< 
fleeted  in  the  provision  that  the  general  assembly  should  meet  once 
in  two  years  for  no  longer  than  ninety  days,  which,  however, 
might  be  extended  for  thirty  days  by  the  concurrence  of  three- 
fifths  of  the  members.  To  the  old  restrictions  of  1829 — relating 
to  habeas  corpus,  bill  of  attainder,  ex  post  facto  laws,  impairing  the 
obligation  of  contracts,  freedom  of  speech  and  press,,  and  religious 
freedom — were  added  several  additional  restrictions.  The  general 
assembly  was  forbidden  to  pledge  the  state  for  debts  or  obligations 
of  any  company  or  corporation,  to  grant  charters  of  incorpora- 
tion to  any  religious  body,  to  authorize  lotteries  or  to  grant  di- 
vorces, 29  to  change  names  of  persons  or  direct  the  sale  of  the  estates 
of  persons  under  legal  disabilities.  The  attitude  of  the  recently 
admitted  states  was  reflected  in  the  provision  prohibiting  the  leg- 
islature to  form  a  new  county  of  less  than  600  square  miles  or  to 
reduce  an  old  county  to  a  lower  limit.  One  restriction,  reflecting 
a  phase  of  the  slavery  question,  forbade  the  assembly  to  emanci- 
pate any  slave  or  descendant  of  a  slave. 

The  constitution  declared  that  taxation  should  be  equal  and 
uniform  and  that  all  property  other  than  slave  should  be  taxed 
according  to  its  value.  All  the  resolutions,  substitutions  and 
efforts  of  western  members  failed  to  keep  this  exception  out  of 
the  constitution. 3o  On  every  slave  over  twelve  years  of  age  was 
assessed  a  tax  equal  to  that  assessed  on  land  of  the  value  of  $300. 
Slaves  under  twelve  were  not  taxed.  A  majority  vote  of  those 
elected  to  the  assembly  might  exempt  other  taxable  property  from 
taxation.  A  capitation  tax  equal  to  the  tax  on  land  of  the  value 
of  $200  was  levied  on  every  white  male  inhabitant  of  twenty-one. 
One  equal  moiety  of  this  white  capitation  tax  was  applied  to  the 
purpose  of  education  in  primary  and  free  schools.  Many  in  the 
convention  would  have  been  delighted  to  have  had  a  provision  for  a 
permanent  system  of  schools  incorporated  in  the  constitution,  but 


28.  Monongalia   Mirror,   December    8,    1849. 

29.  The  general  assembly  granted  two  divorces  from  1829  to  1831, 
and  thirty-seven  from  1849  to  1851.  Acts  1830-31,  p.  305;  Acts  1848-49, 
pp.    246-248;   Acts   1849-50,   pp.   227-230;   Acts   1850-51,    pp.   196-200. 

30.  Journal  etc.,  1850-51,  pp.  32  and  43.  Resolutions  of  Neeson, 
Brown   and  Faulkner. 


14  Studies   in   West   Virginia   History. 

Virginia  was  not  yet  ready  for  that.**  As  in  Michigan  the  same 
year,  the  constitution  provided  for  a  sinking  fund  by  directing  the 
legislature  to  set  aside  seven  per  cent  of  the  state  debt  existing 
on  January  1,   1851. 

The  constitution  was  ratified  in  October,  1851,  by  a  vote 
of  75,748  to  11,063.  The  only  counties  giving  majorities  against 
the   constitution   were   five  <  eastern   counties. 

V.     Formation  of  the  New  State. 

In  his  speech  at  the  close  of  the  convention  of  18  51,  after  ex- 
horting the  members  on  their  return  to  their  constituents  to  exert 
all  their  influence  to  allay  sectional  strife  and  to  promote  a  cordial 
fraternal  feeling  among  the  people  of  their  beloved  commonweath, 
President  Mason  said:  "Virginia  united  has  ever  been  one  of  the 
noblest  states  of  the  confederacy.  I  cannot  contemplate  what  she 
would  be  if  torn  by  intestine  feuds  or  if  frantically  seeking  her 
own  dissolution.  May  you  long  live  to  see  this  ancient  common- 
wealth united  and  happy  at  home,  honored  and  respected 
abroad. "32 

In  spite  of  Mason's  parting  injunction,  the  rift  between  the 
East  and  the  West  continued  to  widen  in  the  decade  of  political 
agitation  which  followed.  The  fierce  controversy  over  slavery  was 
driving  the  North  and  South  farther  and  farther  apart  and  neithei 
the  President,  nor  Congress,  nor  the  Supreme  Court  could  suggest 
any  middle  ground  which  would  satisfy  both.  Under  the  ad- 
ministration of  Wise,  the  political  hero  of  the  West,  efforts  were 
made  to  conciliate  the  West  and  thereby  to  endeavor  to  bridge  the 
chasm  between  sections.  The  West  was  exhorted  to  send  her  chil- 
dren to  Virginia  schools  taught  by  Virginians,  and  various  schemes 
for  railroads  and  canals  to  connect  the  West  and  the  East  were 
proposed.  The  interests  of  West  Virginia,  however,  with  less  than 
four  per  cent,  of  her  population  slave,  were  those  of  a  northern 
state.  Her  sons  continued  to  attend  schools  in  free  states  rather 
than  the  schools  across  the  Blue  ridge.  Her  markets  were  in  Pitts* 
burg,  Baltimore  and  the  Mississippi  river  towns  rather  than  in 
Norfolk.  Her  geographic  conditions  allied  her  interests  with  those 
of  Pennsylvania  and  Ohio  and  her  Industries  were  those  which 
called  for  white  rather  than  slave  labor.  Her  natural  destiny 
and   future   loyalty   to   the   Union   and   opposition   to   secession   were 


31.     Journal,  p.  26.     (Also,  the  resolutions  of  Martin,  Faulkner  and 
Carlile   in   the    appendix). 
S2.     Ibid,   p.  420. 


Evolution  of  the  Constitution.  15 

clearly  forecasted  by  Webster,  in  his  speech  at  the  laying  of  the 
corner  stone  of  the  addition  to  the  capital  at  Washington  (in 
1851).  "And  ye  men  of  Western  Virginia  who  occupy  the  slope 
from  the  Alleghenies  to  the  Ohio  and  the  Kentucky,"  said  he, 
"what  benefit  do  you  propose  to  yourself  by  disunion?  If  you 
secede  what  do  you  secede  from  and  what  do  you  secede  to?  Do 
you  look  for  the  current  of  the  Ohio  to  change  and  bring  you  and 
your  commerce  to  the  waters  of  Eastern  rivers?  What  man  can 
suppose  that  you  would  remain  a  part  and  parcel  of  Virginia  a 
month  after  Virginia  had  ceased  to  be  part  and  parcel  of  the 
United  States.33 

Ten  years  later,  Webster's  significant  utterance  was  brought 
to  a  test.  The  secession  of  South  Carolina  and  the  other  cotton 
states  precipitated  a  crisis  in  which  Virginia  hesitated  to  act. 
Governor  Letcher  called  an  extra  session  of  the  legislature  which 
met  January  7,  1861,  to  determine  "calmly  and  wisely  what  ought 
to  be  done."  This  session  authorized  an  election  (on  February  4) 
to  choose  delegates  to  a  convention  to  determine  the  policy  of  Vir- 
ginia in  the  impending  crisis.  In  the  West,  in  most  of  the  counties, 
meetings  were  held  vigorously  protesting  against  any  convention 
to  consider  federal  relations  and  condemning  the  act  of  the  legis- 
lature which  had  called  such  a  convention  without  previously  sub- 
mitting the  question  to  the  peopled 

In  the  convention  which  met  February  14,  special  commis- 
sioners sent  from  Georgia,  Mississippi  and  South  Carolina,  urged 
secession.  The  secessionists  strained  every  nerve  to  get  the  pas- 
sage of  the  ordinance  and  gradually  induced  several  Union  mem- 
bers to  join  them.  Though  the  convention  hesitated  for  a  time, 
it  was  induced  by  excited  leaders,  after  the  news  of  the  fall  of 
Fort  Sumter,  to  cast  the  lot  of  Virginia  with  the  confederacy.  The 
decisive  step  was  finally  taken  on  April  17,  largely  through  the 
dramatic  speech  of  Wise,  who  spoke  with  watch  in  hand,  pistol  in 
front  of  him,  his  hair  bristling  and  disheveled,  and  his  eyes  stand- 
ing out  with  the  glare  of  excitement.  The  ordinance  of  secession 
was  passed  by  vote  of  88  to  55.  The  vote  of  members  from 
western  Virginia  stood  32  to  11  against  it  (4  not  voting). 

Neither  unionists  nor  secessionists  waited  for  the  popular  vote 
on  the  ordinance  which  the  convention  provided  should  be  taken 
May  23,  the  date  for  the  regular  election  of  members  to  the  general 
assembly.     The  secessionists  seized   the  arsenal  at  Harper's  Ferry 

33.  Granville    Davisson    Hall:      Rending-    of   Virginia,    p.    14. 

34.  Hall:      Rending    of    Virginia,    pp.    123-127. 


16  Studies   in   West   Virginia   History. 

and  the  custom  houses  at  Richmond,  Norfolk  and  Portsmouth,  and 
put  Virginia  under  the  control  of  the  confederacy  as  if  she  had 
already  become  one  of  its  members. 

The  West,  deserted  by  Wise  its  leader  of  the  decade  before, 
x  and  seeking  other  wise  leaders  for  the  future,  was  soon  under  the 
general  direction  of  John  S.  Carlile  after  his  safe  return  from 
the  Richmond  convention.  A  meeting  held  at  Clarksburg,  on  April 
22,  urgently  recommended  that  each  county  of  northwestern  Vir- 
ginia should  send  at  least  five  men  to  Wheeling,  on  May  13,  to 
determine  what  action  should  be  taken  in  the  emergency,  In 
response  to  this  recommendation,  on  the  day  appointed,  over  400 
men,  pursued  in  some  instances  by  confederate  troops,  flocked  to 
Wheeling  where  amid  great  demonstrations,  flags  and  banners  fly- 
ing, bands  playing  and  people  cheering,  they  assembled  as  a  con- 
vention in  Washington  Hall.  The  members  were  divided  on  the 
question  of  what  should  be  done  first.  Many,  led  by  John  S. 
Carlile,  insisted  on  the  immediate  formation  of  a  new  state.  The 
Wood  county  delegation  carried  a  banner  which  bore  the  inscrip- 
tion: "New  Virginia,  now  or  never."  Others  feeling  that  the 
time  called  for  thoughtful,  guarded  deliberation,  were  opposed  to 
immediate  action.  After  a  debate  which  lasted  for  three  days  the 
convention  delegated  its  power  to  a  central  committee  and  ad' 
journed.  Its  recommendation,  that  if  the  ordinance  of  secession 
should  be  ratified  on  May  23,  there  should  be  an  election,  on  June 
4,  to  select  delegates  to  a  new  convention  to  reorganize  the  govern- 
ment, was  put  into  operation. ss 

On  June  11,  the  representatives  from  thirty-nine  counties  as- 
sembled at  Wheeling.  At  this  time  the  people  of  western  Virginia 
were  without  a  judiciary,  without  sheriffs  and  without  legal  pro-, 
tection  of  life,  liberty  and  property.  The  convention  reorganized 
the  state  government  and  adjourned  on  June  25.  It  declared 
vacant  the  offices  held  by  state  officials  who  were  acting  in  hostility 
to  the  federal  government  and  provided  for  the  appointment  (by 
the  convention)  of  the  state  officers  for  six  months  or  until  their 
successors  were  elected  or  qualified.  It  elected  the  governor,  lieu- 
tenant governor,  the  executive  council  and  attorney  general,  and 
provided  that  the  remaining  executive  officers  should  be  elected  by 
the  general  assembly,  consisting  of  all  the  members  who  were 
elected  on  May  23  and  who  should  take  the  prescribed  oath. 
This  assembly  also  appointed  Carlile  and  Willey  to  the  seats  in  the. 


35.     Congressional   Globe,   part   3,    2nd   session,    37th   Congress,    1861- 
«2,    pp.    2415-2419. 


Evolution  of  the  Constitution.  17 

United  States  senate  made  vacant  by  the  resignation  of  Hunter  and 
Mason. 

The  convention  reassembled  on  August  6;  and,  after  much  dis- 
cussion concerning  the  legality  of  such  an  act,  on  August  20,  it 
passed  an  ordinance  providing  for  the  formation  of  a  new  state; 
and  adjourned  on  August  21.  On  October  24,  the  people  living 
within  the  boundaries  of  the  proposed  state  ratified  the  ordinance 
by  a  vote  of  18,408  to  781  and  at  the  same  time  elected  delegates 
to  a  constitutional  convention  which  met  at  Wheeling  on  November 
26,  1861.36 

The  constitution  framed  by  the  Wheeling  convention  was  far 
better  than  the  prejudices  of  many  of  the  members,  as  reflected 
in  the  debates,  might  have  indicated. 37  Unfortunately,  there  was 
no  official  provision  for  the  publication  of  the  debates.  Perhaps 
the  reasons  for  this  neglect  are  reflected  in  the  remarks  of  three 
members.  Chapman  J.  Stuart,  representing  Doddridge  county, 
speaking  without  historical  foresight  said  in  the  convention,  that  to 
publish  the  debates  which  no  one  would  ever  read  would  be  an 
unnecessary  expense.  James  H.  Brown  of  Kanawha,  untrained  in 
historical  perspective,  said  that  after  the  vital  point — the  success 
and  excellence  of  the  constitution — had  been  attained,  the  debates 
by  which  it  had  been  attained  were  "immaterial  and  unimportant." 
Hall,  a  stickler  for  impromptu  and  informal  discussion,  opposed 
publication   because  he   feared   it  would   lead   to   "set  speeches."-^ 

The  name  selected  for  the  new  state  was  not  the  only  one  pro- 
posed. The  name  Kanawha  which  had  been  used  in  the  ordinance 
for  the  formation  of  the  state  was  rejected — probably  because  there 
was  already  in  the  state  a  county  and  a  river  by  that  name.  Mr. 
Willey  said  that  some  of  his  constituents  along  the  Monongahela 
thought  that  Kanawha  was  too  hard  to  spell.  There  was  objection 
also  to  the  name  of  West  Virginia.  Many  felt  that,  as  immigrants 
held  the  name  Virginia  in  disrepute,  thousands  believing  that  Vir- 
ginia policy  still  prevailed  would  be  kept  away  if  that  name 
were  retained.  Others  feared  that  the  soubriquet  "West"  would 
disgrace  the  new  state  in  comparison  with  Virginia.  The  ques- 
tion  was  finally  settled  by  the   sentiment  of  those  who   had   long 


36.  Journal  of  the  Constitutional  Convention  of  West  Virginia, 
1861-2:     Appendix   (No.   53). 

37.  The  stenographic  notes  of  the  debates,  made  by  an  assistant 
clerk  of  the  convention,  Granville  D.  Hall,  are  in  manuscript  in  the 
department  of  Archives  and  History  of  West  Virginia.  These  have  been 
read  by  the  writer  and  frequent  reference  will  be  made  to  them  under 
the  title  "Hall  MS.** 

38.  Journal  p.  45;   and  Hall  MS.,  Dec.  16,  1861  and  Feb.  13,  1863. 


18  Studies  in  West   Virginia   History. 

lived  in  the  old  Dominion  and  who  revered  the  memories  of  its 
most  honored  citizens. s» 

The  question  of  boundaries  was  a  source  of  considerable  de- 
bate. On  the  day  that  the  convention  assembled,  the  Wheeling 
Intelligencer  urged  that  the  people  wanted  a  homogeneous  state. 
Such  they  could  not  have  by  including  the  eastern  valley  in  which, 
contrary  to  conditions  in  northwestern  Virginia,  negroes  were  the 
staple,  and  whose  people  could  not  agree  with  the  trans-Allegheny 
counties  on  the  question  of  prohibiting  slavery  in  the  new  state. 
Yet  several  attempts  were  made  in  the  convention  to  include  the 
valley  counties  together  with  additional  counties  in  the  south- 
west.^ Through  the  influence  of  the  Baltimore  and  Ohio  railway, 
whose  officials  were  desirous  of  getting  the  road  out  of  Virginia,** 
the  proposition  was  made  to  include  (conditioned  on  a  majority 
of  the  votes  of  each  county),  Pendleton,  Hardy,  Hampshire, 
Morgan,  Berkeley,  Jefferson  and  Frederick. «  On  the  same  day 
that  this  proposition  was  carried  (February  11,  1862,)  Brown  ot 
Kanawha,  who  at  first  had  contended  that  the  Blue  ridge  should  be 
the  eastern  boundary,  moved  to  include  under  like  conditions 
seventeen  additional  counties:  nine  in  the  southwest  (Lee,  Scott, 
Wise,  Russell,  Buchanan,  Tazewell,  Bland,  Giles  and  Craig),  three 
between  the  Allegheny  and  Shenandoah  mountains  (Allegheny, 
Bath  and  Highland)  to  fill  the  niche  between  Monroe  and 
Pendleton  counties,  three  extending  along  the  Potomac  to  a 
point  below  Washington  (Loudoun,  Alexandria  and  Fairfax)  and 
the  two  counties  of  the  eastern  shore  (Accomac.and  Northampton). 
The  majority  of  the  members  of  the  convention,  believing  that 
if  these  counties  were-  included  the  new  state  movement  would 
fail,  disapproved  and  defeated  Mr.   Brown's  motion. ** 

Important  changes  in  the  electorate  and  in  the  elections  were 
made.  Desiring  to  accelerate  the  retarded  development  which  had 
resulted  from  tide-water  policies  and  the  long  delayed  execution 
of  projected  intra-state  improvements  in  western  Virginia,  the  new 
state  made  a  jealous  bid  for  thrifty  immigrants  by  extending  the 
rather    liberal    suffrage    provision    of    the    Virginia    constitution    of 

39.  Journal  pp.  24-25;  Hall  MS.,  Dec.  3,  1861.  [Harmon  Sinsel,  the 
eccentric  member  from  Pruntytown  desired  to  include  Virginia  as  pan 
of  the  name  because  it  reminded  him  of  the  Virgin  Mary]. 

40.  Journal  pp.   32-39. 

41.  Parker:   Formation  of  West  Virginia,  p.   62. 

42.  Hardy  county  included  Grant  which  was  formed  from  it  in 
1866;  and  Hampshire  included  Mineral  which  was  formed  from  it  in 
the  same  year. 

43.  Journal  p.  162,  and  Hall  MS.,  Feb.  11,  1862. 


Evolution  of  the  Constitution. 

1851.  The  residence  qualification  for  a  voter,  which  had  been 
fixed  at  two  years  in  the  state  and  twelve  months  in  the  voting 
district,  were  reduced  to  one  year  in  the  state  and  thirty  days  in 
the  district.  Viva  voce  voting,  "that  old  aristocratic  thumb-screw 
which  had  kept  a  large  part  of  the  voters  of  Virginia  virtually 
slaves"  and  without  which  it  was  generally  believed  that  Virginia 
could  never  have  passed  the  ordinance  of  secession,  was  replaced 
by  the  ballot  system.  The  date  of  elections  was  changed  from  May 
to  October,  which  was  considered  a  more  convenient  time  for 
farmers  to  meet,  and  which  also  was  more  suitable  to  the  con- 
venience of  candidates  and  politicians. ** 

The  legislative  body,  the  name  of  which  was  now  changed  from 
"general  assembly"  to  "legislature,"  was  to  meet  annually  for  not 
longer  than  forty-five  days  unless  three-fourths  of  the  members  con- 
curred to  lengthen  the  session.  Annual  sessions  were  favored  on 
the  ground  that  they  would  prove  less  expensive  than  the  biennial 
sessions  which  had  been  tried  under  the  constitution  of  1851. 
For  the  first  time  representation  in  both  houses  was  to  be  based 
on  the  white  population.  The  delegates  were  to  be  elected  for  a 
term  of  one  instead  of  two  years  and  the  senators  (half  each 
year)  for  the  term  of  two  years  in  place  of  four  years.  To  the 
age  and  district  resident  qualifications  for  legislators,  which  re- 
mained as  in  the  Virginia  constitution  of  1851,  was  added  the  pro- 
vision that  a  senator  should  be  a  citizen  of  the  state  five  years  next 
preceding  his  election  or  at  the  time  of  the  adoption  of  the  new 
constitution. 

The  clause  of  the  constitution  of  1851  which  had  debarred 
ministers  and  bank  officers  from  seats  in  the  legislature  was 
dropped  but  a  provision  was  borrowed  from  the  constitution  of 
Indiana  debarring  any  person  who  had  been  entrusted  with  public 
money  and  had  failed  to  account  for  and  pay  over  such  money  ac- 
cording to  law.  A  new  anti-duelling  clause  disqualified  from  hold- 
ing office  any  person  who  had  been  concerned  in  a  duel.*5 

To  the  previous  Virginia  restrictions  on  the  legislature  pro- 
hibiting it  to  authorize  a  lottery,  to  grant  a  charter  to  a  religious 
denomination,  or  to  grant  special  relief  in  matters  entrusted  to  th*. 


44.  Hall   MS.,   Dec.   18,   1861. 

45.  The  reason  for  inserting-  this  disqualifying  clause  in  the  con- 
stitution was  explained  in  the  report  from  the  committee.  The  con- 
stitution of  1851  had  given  the  legislature  the  power  to  pass  laws  dis- 
qualifying persons  concerned  in  a  duel.  The  legislature  although  it 
had  passed  such  laws  had  been  accustomed  to  repeal  them  temporarily 
whenever  a  favorite  so  disqualified  became  a  candidate  for  office. 
[Hall   MS.,   Jan.    7,    1862]. 


20  Studies  in  West  Virginia   History. 

circuit  court  (to  grant  a  divorce,  to  change  the  names  of  persons 
and  to  direct  the  sale  of  estates  of  persons  under  legal  disability), 
or  to  form  a  new  county  of  less  than  minimum  size,  were  added 
other  restrictions:  prohibition  of  all  special  legislation,  and  any 
law  which  would  make  the  state  a  stock  holder  in  any  bank,  or 
grant  the  credit  of  the  state  in  aid  of  any  county,  city,  town  or 
township,  corporation  or  person,  or  make  the  state  respons- 
ible for  their  debts  or  liabilities,  or  contract  any  state  debt  except 
to  meet  casual  deficits  in  the  revenues,  to  defend  the  state,  and  to 
redeem  a  previous  liability  of  the  state  (including  an  equitable 
portion  of  the  public  debt  of  Virginia  prior  to  January  1,  1861. 

In  one  instance,  the  convention,  after  much  debate,  increased 
the  power  of  the  legislature  by  giving  it  the  additional,  but  as 
yet  unused  power,  to  pass  laws  regulating  or  prohibiting  the  sale 
of  intoxicants  in  the  stated 

The  term  of  the  chief  executive  was  changed  from  four  years 
to  two,  his  term  to  commence  March  4,  instead  of  January  1,  and 
his  salary  reduced  from  $5000  to  $2000  per  year.*?  His  powers 
and  duties  remained  as  under  the  previous  Virginia  constitution 
except  that  the  clause  which  made  him  commander-in-chief  of  the 
naval  forces  of  the  state  was  omitted.  He  still  had  no  power  to 
veto  an  act  of  the  legislature.  The  office  of  lieutenant  governor 
which  was  considered  a  very  unnecessary  appendage  was  abolished 
without  debate.  In  opposition  to  the  wishes  of  Brown  and  others, 
who  favored  their  election  by  the  legislature  as  in  Virginia,  the 
convention  decided  that  the  secretary  of  state,  the  treasurer,  and 
the  auditor  should  be  elected  at  the  gubernatorial  election  for  a 
term  of  two  years.  The  attorney-general  was  to  be  chosen  at  the 
same  time  and  for  the  same  term. 

The  whole  judicial  power  of  the  new  state  was  vested  by  the 
constitution  in  a  supreme  court  of  appeals  (with  three  judges,  but 
otherwise  the  same  as  in  the  Virginia  state  constitution),  circuit 
courts,  and  justices  of  the  peace.  The  nine  circuit  judges  were  to 
be  elected  for  six  instead  of  eight  years  and  the  court  was  to  be 
held  at  least  four  times  instead  of  twice  a  year.  Both  the  much 
disliked  county  court  and  the  Virginia  district  court  (created  by 
the  constitution   of   1851)    were   abolished   without   mention. *s 

46.  Hall  MS.,  January  16,   1862. 

47.  Stevenson,  who  doubtless  changed  his  mind  later  when  he  be- 
came governor  of  the  state,  said  in  the  convention  that,  as  the  gov- 
ernor might  be  at  work  but  one  month  in  the  year  and  could  occupy 
himself  with  someth:?^"-  el**  the  other  eleven  months,  surely  $1,600 
would  be   enough   for   him. 

48.  Poore,   vol.   2,   pp.    1978-1992. 


Evolution  of  the  Constitution.  21 

In  the  constitution  one  may  see  the  evidence  of  the  earlier 
opposition  to  the  inequalities  of  the  Virginia  system  of  taxation. 
Paxton,  in  his  report  from  the  committee  on  taxation  and  finance, 
said  that  no  feature  of  the  constitution  of  1851  was  so  odious 
as  that  which  discriminated  in  taxation — taxing  slave  property 
much  lower  than  the  ad  valorem  tax  on  all  other  property.  Therev 
fore,  the  constitution  clearly  provided  that  all  property  both  real 
and  personal  should  be  taxed  in  proportion  to  its  value  and  that  no 
one  species  of  property  should  be  taxed  higher  than  any  other 
species  of  property  of  equal  value.  There  was  a  provision,  how- 
ever, that  educational,  literary,  scientific,  religious  and  church 
property  might  be  exempted  from  taxation  by  law.« 

In  its  provisions  for  the  local  government  the  constitution 
showed  a  distinct  departure  from  the  previous  provisions  of  the 
Virginia  constitutions.  In  place  of  the  county  court  system  which, 
although  remedied  much  in  1851,  was  still  very  objectionable  to 
many  of  the  people  of  northwestern  Virginia,  the  convention  adopt- 
ed the  "Yankee  institution"  of  townships  as  sub-divisions  of  the 
counties  with  provision  for  regular  township  meetings  and  for  va- 
rious township  officers  chosen  by  the  people  of  each  township:  a  super- 
visor, a  clerk,  surveyors  of  the  roads  and  an  overseer  of  the  poor,  elect- 
ed annually;  one  or  more  constables  elected  biennially;  and  one  or 
more  justices  elected  quadrennially.  The  county  officers  retained 
in  the  new  system  were  a  sheriff  (elected  for  four  years  and  ineli- 
gible for  the  succeeding  term)  and  a  prosecuting  attorney,  a  sur- 
veyor of  land,  a  recorder  and  assessors  (all  elected  for  two  years.) so 

On  the  question  of  education  the  convention  took  advanced 
ground.  In  this  it  was  much  influenced  by  Mr.  Battelle,  who, 
favoring  greater  financial  encouragement  than  was  finally  secured, 
said  in  the  convention  that  to  his  certain  knowledge  people  were 
leaving  West  Virginia  in  droves,  in  a  great  part  influenced  by  the 
fact  that  elsewhere  they  could  educate  their  children.  The  edu- 
cational question  was  not  new.  The  earlier  discussions  had  fina*i> 
resulted  in  the  beginning  cf  a  system  of  common  schools  in  1846. 
Thereafter  the  West  had  continued  to  agitate  for  reform  in  the 
Virginia  system  of  education,  which  Mr.  Johnson  of  Taylor  county, 
in  the  house  of  delegates,  (en  March  11,  1850),  said  was  properly 
called  a  system  for  the  poor  and  as  properly  called  a  poor  system — 
one  calculated  to  create  and  keep  up  distinctions  in  society,  and  one 
so  abhorrent  to  the  feelings  of  the  poorer  class  of  people  that  the 
children  of  the  poor  man  dreaded  to  come  within  the  pall  of  its 

49.  Hall   MS.,    Jan.    31,    1862. 

50.  Hall  MS.,  Jan.  17  and  22,  1862. 


22  Studies   in   West   Virginia   History. 

provisions.  Consistent  with  the  policy  of  the  West,  expressed  In 
long-continued  agitation,  the  convention  provided  for  the  establish- 
ment of  a  thorough  and  efficient  system  of  free  schools  supported 
by  interest  from  an  invested  school  fund,  the  net  proceeds  of  all 
forfeitures,  confiscations  and  fines,  and  by  general  personal  and 
property  taxes. si 

In  the  convention  no  one  question  caused  more  concern  and 
division  than  that  of  slavery.  On  the  one  hand,  some,  strongly 
urging  that  the  new  state  should  be  free  from  slavery,  sustained 
their  view  with  the  argument  that  the  convention  was  providing 
for  the  future  of  a  region  capable  of  becoming  one  of  the  most 
wealthy  and  important  parts  of  the  Union  and  which  would  long 
ago  have  been  such  had  it  not  been  for  the  curse  of  slavery  which 
repelled  from  its  borders  the  white  population  which  had  built  up 
half  a  dozen  states  in  the  northwest.  "Make  West  Virginia  free," 
they  said,  "and  she  will  invite  immigrants.  Her  coal  and  her  iron 
can  be  mined  only  by  free  labor.  Negro  slavery  is  wasteful  every- 
where but  less  profitable  in  West  Virginia  than  in  any  other  part 
of  the  southern  states."  Some  also  feared  that  Congress  might 
refuse  the  admission  of  the  new  state  if  it  should  appear  so  wedded 
to  slavery  that  it  could  not  apply  for  admission  with  a  free  state 
constitution. M  On  the  other  hand,  many  in  the  convention,  be- 
lieving perhaps  that  slavery  would  gradually  become  extinct, 
thought  it  unnecessary  to  make  any  provision  for  it.  The  conven- 
tion finally  inserted  in  the  constitution  a  clause  forbidding  the  im- 
portation or  immigration  into  the  state  of  any  slave  or  free  negro 
with  a  view  to  permanent  residence;  but,  feeling  that  there  might 
be  some  objection  to  this  clause  in  Congress,  when  it  adjourned  on 
February  18,  1862,  it  did  so  subject  to  recall  in  case  any  change 
should  be  necessary. 

The  remaining  steps  necessary  to  secure  statehood  were 
promptly  taken.  On  the  fourth  Thursday  of  April,  the  constitution 
was  ratified  by  the  people  by  a  vote  of  18,062  to  514.  On  May  13, 
the  re-organized  legislature  of  Virginia  gave  the  state's  consent  to 
the  formation  of  the  new  state;  and  on  May  29,  Senator  Willey, 
representing  Virginia,  in  a  speech  ably  setting  forth  the  causes  and 
conditions  which  led  to  the  request,  presented  to  the  senate  West 
Virginia's  petition  for  admission  to  the  Union.  On  June  23,  the 
committee  on  territories  reported  the  bill  for  admission,  drawn  up 


51.  Hall    MS.,    Jan.    27,    1862;    and    Monongalia  Mirror,    March    16, 
1850. 

52.  Extracts    from    New   York   Post,   Cincinnati  Gazette   and    Pitts- 
burg  Gazette    in    Wheeling   Intelligencer    Feb.    1,    3,  5    and    12,    1862. 


Evolution  of  the  Constitution.  23 

largely  by  Carlile  who  had  previously  been  an  ardent  new  state 
man,  and  providing  that  before  the  state  should  be  admitted  its 
boundaries  should  be  extended  to  include  the  fifteen  valley  coun- 
ties, that  a  new  convention  should  be  held,  and  that  a  new  constitu- 
tion should  be  framed  with  a  provision  that  all  children  of  slaves 
born  after  July  4,  1863  should  be  free.  It  was  evident  to  those 
who  understood  conditions  that  such  a  bill,  even  if  desirable,  was 
impracticable  and  could  not  succeed;  and  some  even  asserted  that 
its  intent  was  to  block  admission.  After  several  debates  (on  June 
26  and  July  1,  7,  and  14),  the  bill,  amended  to  conform  with  the 
boundaries  established  by  the  constitution,  and  to  provide  for  gen- 
eral emancipation,  passed  the  senate.  On  December  10,  after  a 
term  of  postponement,  it  passed  the  house;  and  on-  December  31, 
was  signed  by  the  President.^  On  February  12,  1863,  the  consti- 
tutional convention  convened  and  made  the  necessary  provision  for 
gradual  emancipation,  and  on  March  26,  the  amended  constitution 
was  ratified  by  the  people  by  a  vote  of  2 3f, 3 2 1  to  472.  On  April 
20,  the  President  issued  his  proclamation  by  which  (on  June  20, 
1863)  West  Virginia  became  the  thirty-fifth  state  of  the  Union. 
The  new  state  government  promptly  replaced  the  re-organized  gov- 
ernment of  Virginia,  which  moved  from  the  new  state  and  located 
at  Alexandria. 

West  Virginia  entered  upon  her  career  as  a  separate  state  of 
the  American  union  at  the  most  critical  period  in  the  war  of  se- 
cession— two  weeks  before  the  battle  of  Gettysburg  and  Vicksburg. 
After  the  President's  proclamation  of  April  20,  the  new  government 
was  rapidly  organized.  Arthur  L.  Boreman  for  governor,  and  other 
state  officers,  nominated  at  a  convention  at  Parkersburg  early  in 
May,  were  elected  the  latter  part  of  the  same  month.  Judges  of 
the  supreme  court  and  county  officials  were  elected  at  the  same 
time.  On  June  20,  the  state  officers  began  their  duties.  On  the 
same  day  the  first  legislature  (20  senators  and  51  delegates)  as- 
sembled, and  on  August  4,  it  elected  two  United  States  senators — . 
Waitman  T.  Willey  and  Peter  G.  VanWinkle.  Soon  thereafter  con- 
gressmen were  elected  from  each  of  the  three  newly  formed  con- 
gressional districts. 

VI.     Problems  of  the  First  Decade. 

The  new  state  government,  laying  the  foundation  stones  of 
state  institutions  and  of  future  order  and  development,  was  con- 


53.  Cong.  Globe,  Part  3,  37th.  Cong.  2nd.  session,  pp.  2959,  3307- 
15,  3397-98.  Cong.  Globe,  Part  4,  37th.  Cong.  2nd  session,  pp.  3308- 
3320.     Cong.   Globe,   Part    1,    37th.   Cong.    3rd.   session,   pp.   37,   41,   60. 


24  Studies   in   West   Vibginia   History. 

fronted  by  many  serious  difficulties  and  obstacles — economic,  social 
and  political.  The  people,  separated  into  many  detached  local 
groups  by  precipitous  mountains  and  rugged  streams,  had  not  de- 
veloped unity  of  action  nor  social  and  commercial  identity  except 
perhaps  in  the  counties  along  the  Ohio,  and  along  the  Baltimore  and 
Ohio  railroad.  The  most  serious  immediate  political  difficulty  was 
the  sympathy  for  the  Confederacy  in  various  parts  of  the  state. 
Although  the  Confederates  had  soon  lost  control  of  the  larger  part 
of  the  state,  over  7,000  West  Virginians  had  entered  the  Confed- 
erate army  early  in  the  war — about  one-fourth  of  the  number  who 
enlisted  in  the  Union  army — and  the  Confederate  raids  and  skirm- 
ishes into  the  state,  at  first  to  prevent  separation  from  Virginia, 
were  continued  until  the  close  of  the  war. 

Counties  along  the  southern  border  of  the  new  state  were 
partially  under  the  control  of  the  Confederates  until  near  the  close 
of  the  war  and  "were  forced  to  pay  heavy  taxes  to  the  Richmond 
government,  and  to  furnish  soldiers  for  the  Confederate  army." 
Other  counties  along  the  border  suffered  from  irregular  "bands 
of  guerillas  and  marauders"  whom  the  state  troops  were  unable  to 
manage.  In  this  sad  state  of  disorder,  the  governor  recommended 
that  the  citizens  should  organize  to  capture  and  kill  the  "outlaws" 
wherever  and  whenever  found,  and  appealed  to  the  Washington 
government  which  organized  the  state  into  a  military  district  un- 
der command  of  General  Kelley  who  scattered  many  irregular  bands, 
and  generally  rendered  life  and  property  secure;  but  in  some  por- 
tions of  the  state  the  civil  authorities  were  helpless  against  lawless- 
ness long  after  the  close  of  the  war.54 

Under  these  conditions  the  administration  was  seriously  em- 
barrassed by  lack  of  funds  to  meet  ordinary  expenditures.  In  1864, 
the  governor  reported  that  one-half  of  the  counties  had  paid  no 
taxes  and  others  were  in  arrears.  In  fourteen  counties  there  were 
no  sheriffs  or  other  collectors  of  taxes  "because  of  the  danger  in- 
cident thereto."  The  burdens  of  the  counties  which  paid  were 
necessarily  increased.  One  of  the  earliest  measures  of  the  govern- 
ment was  an  act  (1863)  providing  for  the  forfeiture  of  property 
belonging  to  the  enemies  of  the  state,  including  those  who  had 
joined  the  Confederate  army.sr.  but  such  property  was  seized  only 
in  a  few  instances  and  the  law  remained  practically  a  dead  letter 
because  the  citizens  of  the  state  were  usually  unwilling  to  take  ad- 
vantage of  the  political  disabilities  of  their  neighbors. 


54.  House  Journal,  Jan.  19,  1862,  pp.  1-8  and  Jan.  17,  1865,  pp.  6-18. 

55.  West  Virginia  Acts.   1861-1866;  Acts  of  1863,  pp.   131-135. 


Evolution  of  the  Constitution.  25 

Though  in  the  election  of  1864  there  were  only  a  few  scatter- 
ing votes  in  opposition  to  the  officers  of  the  state  administration, 
there  were  no  means  of  obtaining  an  expression  of  the  people  in 
some  of  the  extreme  southern  counties  where  the  governor  reported 
that  owing  to  the  Confederate  incursions  and  local  conditions  it 
was  still  impracticable  to  organize  civil  authority. 

At  the  close  of  the  war  there  were  still  many  sources  of  dis- 
order and  friction.  The  most  prominent  related  to  the  political 
status  of  those  who  had  joined  or  aided  the  Confederate  cause. 
Although  the  constitution  had  extended  the  right  of  suffrage  to 
all  white  male  citizens  of  the  state,  the  first  general  election  laws 
of  West  Virginia,  passed  in  1863,  provided  for  election  supervisors 
and  inspectors  who  were  authorized  to  require,  from  all  whose 
eligibility  to  vote  was  in  doubt,  an  oath  to  support  the  constitution 
of  the  United  States  and  of  West  Virginia.  Naturally  the  Unionists 
considered  that  those  who  had  supported  the  Confederate  cause 
could  not  safely  be  entrusted  with  political  power  immediately  after 
their  return  from  the  Confederate  armies,  and  before  they  had 
proven  their  willingness  to  co-operate  in  maintaining  the  established 
order.  This  opinion  was  enforced  by  conditions  and  events.  In  1865, 
organized  bands  of  returning  Confederates  committed  several  mur- 
ders and  robberies  in  Upshur,  Barbour,  Marion  and  Harrison  coun- 
ties. The  legislature,  with  partisan  spirit  increased,  on  February 
25  p?.ssed  the  voter's  test  act,  requiring  from  all  voters  an  oath 
that  they  had  neither  voluntarily  borne  arms  against  the  United 
States,  nor  aided  those  who  had  engaged  in  armed  hostility  against 
the  United  States."  On  March  1,  with  some  fear  that  the  test- 
oath  act  was  not  constitutional,  it  also  proposed  an  amendment 
disfranchising  those  who  had  given  voluntary  aid  to  the  Confed- 
eracy— of  course  with  the  intention  of  removing  the  disabilities 
in  course  of  time."  This  proposed  amendment,  which  required 
the  concurrent  approval  of  the  subsequent  legislature  and  ratifica- 
tion by  popular  vote  before  it  was  part  of  the  constitution,  further 
aroused  the  spirit  of  antagonism  and  insubordination  in  the  minds 
of  the  ex-Confederates  who  were  "impatient  to  repossess  them- 
selves of  place  and  power."     In  the  election  of  1865,  the  test-oath 


56.  West   Virginia  Acts.    1861-1866:   Acts   of   1865,   p.    47. 

57.  The  amendment  was  as  follows:  "No  person,  who,  since  the 
first  day  of  June,  1861,  has  given  or  shall  give  voluntary  aid  or  as- 
sistance to  the  rebellion  against  the  United  States,  shall  be  a  citizen 
of  this  state  or  be  allowed  to  vote  at  any  election  held  therein,  unless 
he  has  volunteered  into  the  military  or  naval  service  of  the  United 
States  and  has  been  or  shall  be  honorably  discharged  therefrom." 
Acts  of  West  Virginia  1861-66:     Acts  of  1865,  p.   94. 


26  Studies   in   West  Virginia    History. 

act  was  not  strictly  enforced^  and  in  a  few  places  it  was  entirely 
ignored.  Many  ex-Confederates,  claiming  that  the  law  was  uncon- 
stitutional, took  a  free  hand  in  organizing  the  local  government. 
In  some  places  they  ran  for  office,  and  in  Greenbrier  county  two 
were  elected — one  to  the  state  senate  and  the  other  to  the  house 
of  delegates.  In  his  message  of  1866,  Governor  Boreman,  com- 
menting upon  the  alacrity  with  which  the  ex-Confederates  insisted 
upon  participation  in  politics,  advised  the  legislature  to  ennct  a 
more  efficient  registration  law,  to  require  election  officers  to  take 
a  test  oath,  and  to  give  the  necessary  concurrence  in  the  proposed 
disfranchisement  amendment,  so  that  it  could  be  submitted  to  the 
people.  The  legislature  promptly  passed  a  registration  law,  au- 
thorizing the  governor  to  appoint  in  each  county  a  registration 
board  consisting  of  three  citizens  who  were  given  power  to  desig- 
nate the  township  registrars.  It  also  concurred  in  the  proposed  amend, 
ment,  which  was  promptly  ratified  by  the  people  in  May,  1866  by  a  ma- 
jority of  about  7,000  votes,  thereby  disfranchising  between  10,000 
and  20,000  persons. 

Although  there  is  yet  considerable  difference  of  opinion  in  re- 
gard to  the  wisdom  of  these  measures,  it  is  generally  agreed  that 
they  were  the  natural  result  of  conditions  which  seemed  to  threaten 
not  only  the  policies  of  the  administration  but  also  the  integrity 
and  independence  of  the  new  state.  Many  of  those  who  were  dis- 
franchised hoped  to  see  West  Virginia  return  to  the  control  of 
Virginia.  In  Jefferson  county  a  large  number  of  persons  stating 
that  the  transfer  of  the  county  from  Virginia  to  West  Virginia 
during  their  absence  was  irregular  and  void,  refused  to  acknowledge 
that  they  were  West  Virginians  and  attempted  to  hold  an  election 
as  a  part  of  the  state  of  Virginia;  but  they  yielded  when  General 
Emory  was  sent  to  aid  the  civil  authorities  in  maintaining  the 
law.  Virginia,  too,  tried  in  vain  to  secure  the  return  of  Jefferson 
and  Berkeley  counties,  first  by  annulling  the  act  of  the  Pierpont 
government  which  had  consented  to  the  transfer,  and  second  (1866) 
by  bringing  suit  in  the  supreme  court  which  in  1871  was  decided 
in  favor  of  West  Virginia.  In  1866,  while  Pierpont  was  still  gov- 
ernor of  Virginia,  the  legislature  of  that  state  appointed  three  com- 
missioners to  make  overtures  to  West  Virginia  for  the  reunion  of 
the  two  states,  but  the  legislature  of  West  Virginia  rejected  the 
proposition  in  1867 — stating  that  the  people  of  the  new  state  were 
unalterably  opposed  to  reunion.  At  the  same  time,  the  legislature, 
although  in  order  to  thwart  the  argument  of  unconstitutionality 
which  was  urged  against  the  proscription  laws  it  repealed  the  reg- 
istration  law   of    1866,    was  forced   by  conditions   in   some   of   the 


Evolution  of  the  Constitution.  27 

southern  border  counties  to  enact  in  its  place  a  more  exacting  reg- 
istration law,  requiring  the  applicant  for  registration  not  only  to 
take  the  test  oath  but  also  to  prove  that  he  was  qualified  to  vote. 
A  state  of  insubordination  existed  in  three  or  four  counties.  In 
some  places  no  elections  were  held  in  the  fall  of  1866,  because  of 
the  fear  of  violence.  The  judge  of  the  ninth  district,  including 
Greenbrier  and  Monroe  counties,  had  received  annoymous  letters 
threatening  his  life.  In  his  message,  the  governor  stated  that  the 
ex-Confederates  who  caused  the  trouble  were  "learned  men/'ss 

The  new  registration  law,  which  gave  to  registrars  the  power 
to  identify  those  who  had  aided  the  secessionists  in  any  form,  in- 
creased the  antagonism  to  the  administration  and  the  opposition  to 
the  laws.  During  the  campaign  of  1868  there  was  much  partisan 
excitement.  Many,  unable  to  take  the  iron-clad  oaths  which  would 
enable  them  to  vote,  and  perhaps  further  irritated  by  the  adoption 
of  the  fourteenth  amendment,  frequently  attempted  to  intimidate  pub- 
lic officials  and  threatened  violence  which  in  some  places  prevented 
elections  and  in  others  compelled  the  governor  to  appeal  for  federal 
troops  to  aid  in  the  maintenance  of  law  and  order.  Force  was  neces- 
sary to  aid  in  the  execution  of  the  law  in  the  counties  of  Monroe, 
Wayne,  Cabell,  Logan,  Randolph,  Tucker,  Barbour  and  Marion. 
In  some  counties  the  restrictions  of  the  registration  law  were  al- 
most entirely  disregarded.  As  might  have  been  expected,  in  some 
instances  disorders  arose  from  arbitrary  refusal  to  register  persons 
against  whom  there  was  no  tangible  evidence,  or  for  unnecessary 
and  unwise  rigidity  in  administering  the  law — which  of  itself  was 
not  necessarily  unjust  nor  unwise. $* 

Before  the  election  of  1869  there  was  a  vigorous  discussion  of 
the  suffrage  question  in  all  its  phases.  With  the  admission  of  ne- 
groes to  the  suffrage  by  the  fifteenth  amendment  which  was  pro- 
posed by  Congress  in  February,  1869  and  ratified  by  West  Virginia 
on  March  3,  1869,  the  question  of  removing  the  restrictive  legisla- 
tion which  disqualified  Confederates  from  voting  became  more  and 
more  prominent  and  was  seriously  considered  by  the  ..ore  conserva- 
tive wing  of  the  party  in  rower.  A  Jarg*  number  of  the  liberal 
Republicans  considered  that  a  continuance  of  the  test  oaths  was 
inexpedient,  and  desired  to  adopt  some  policy  that  would  terminate 
the  bitter  animosities  of  years.  The  legislature  of  1870  repealed 
some  of  the  test  oaths.     Governor  William  B.   Stevenson,  a  man  of 


58.  House  Journal,  1867;  Governor's  Message  Jan.   15,  1867,  p.  S  et. 
seq.;    Ambler:   Disfranchisement   in   West  Virginia,   p.   50. 

59.  House    Journal,    1868    and    1869,    (Governor's    messages    of    Jan. 
21,    1868    and    Jan.    19,    1869). 


28  Studies  m  West  Vibginia   Histoby. 

liberal  as  well  as  vigorous  progressive  views,  earnestly  favoring 
liberal  legislation  to  encourage  projects  of  internal  improvement 
and  industrial  enterprise  which  would  engage  the  people  of  the 
state  in  the  development  of  its  resources  and  terminate  the  quarrels 
over  past  issues,  recommended  an  amendment  to  the  constitution 
to  restore  the  privileges  of  those  who  had  been  disfranchised  by  the 
amendment  of  1866.eo  w.  H.  H.  Flick  in  the  house  proposed  the 
amendment  which  after  acceptance  by  the  legislatures  of  1870  and 
1871  was  ratified  by  a  vote  of  the  people  by  a  majority  of  17,223, 
and  proclaimed  by  the  governor  in  April,  1871.  Judging  from  the 
figures  in  the  auditor's  report,  it  appears  that  many  disfranchised 
persons  voted  for  the  constitutional  amendment  which  determined 
their  legal  right  to  vote. 

In  the  meantime,  in  the  election  of  1870,  the  opposition  pushed 
their  claims  to  registration — often  by  intimidation  of  the  registrars. 
In  some  counties  the  law  was  so  far  disregarded  that  every  male 
of  the  required  age  was  registered.  This  laxity  in  the  enforcement 
of  the  more  stringent  features  of  the  registration  law,  together 
with  the  opposition  to  negro  suffrage,  resulted  in  a  victory  for  the 
Democrats,  who  elected  John  J.  Jacobs  governor  by  a  majority  of 
over  2000  votes,  and  secured  a  working  majority  in  both  houses 
which  they  retained  for  a  quarter  of  a  century. 

VII.     The  Constitution  of  1872  and'  Amendments. 

After  the  passage  of  the  Flick  amendment  which  accomplished 
the  enfranchisement  of  the  ex-Confederates,  an  object  for  which  the 
Democrats  professedly  had  striven  for  five  years,  further  amendment 
to  the  constitution  seemed  unnecessary.  However,  the  strong  re- 
actionary elements  of  which  the  Democratic  party  was  composed, 
interpreting  the  attitude  of  the  liberal  Republicans  on  the  amend- 
ment as  a  sign  of  weakness,  desired  to  put  them  completely  to 
rout — or  as  the  Wheeling  Intelligencer  said,  they  were  not  willing 
to  wait  until  the  corpse  of  the  Republican  party  was  decently 
buried,  "but  must  administer  on  the  estate  at  once,"  and  for  this 
purpose  demanded  a  constitutional  conventional  Their  strength 
is  shown  in  the  legislature  which,  on  February  23,  1871,  passed 
a  convention  bill. 

The  most  radical  advocates  of  the  convention  were  apparently 
resolved    to    restore    pre-bellum    conditions    as    far    as    possible.      In 


60.  House   Journal,    1871,    (Governor's   message,    Jan.    17,    1871). 

61.  Wheeling  Intelligencer,   Jan.   31,   1871. 


Evolution   of  the  Constitution.  29 

their  zeal  to  make  war  on  the  state  constitution,  they  constructed 
various  ingenious  complaints  against  it.  The  Wheeling  Register 
first  objected  (July  26,  1872,)  to  it  on  the  ground  that  a  reappor- 
tionment could  not  be  made  under  it  without  diminishing  the  ex- 
isting representation  of  some  of  the  counties,  and  later  (August 
11,)  on  the  ground  that  a  new  constitution  was  necessary  to  extend 
the  time  in  which  the  Virginia  debt  should  be  paid.  The  Demo- 
cratic papers  and  various  stump  speakers  emphasized  the  point  that 
the  constitution  of  1862-63  was  adopted  without  the  consent  of 
the  whole  people — at  a  time  when  many  were  in  the  Confederate 
army  and  when  many  others,  refusing  to  recognize  the  reorganized 
state  authority,  had  not  participated  in  the  election*.  Some,  who 
were  jestingly  called  "Democratic  protectionists,"  wanted  a  conven- 
tion to  frame  a  constitution  which  would  provide  protection  against 
the  consequences  of  engaging  in  future  rebellion.  All  the  advo- 
cates of  the  convention  were  most  emphatic  in  expressing  their 
wish  to  abolish  the  township  system,  which  they  claimed  was  a 
new  and  expensive  importation  from  the  northern  states.  They 
desired  to  restore  the  antiquated  county  court  system,  and  many 
proposed  to  abolish  the  ballot  and  to  restore  viva  voce  voting. 
Some  frequently  hinted  that  too  many  people  were  voting,  and 
that  some  property  qualification  should  be  adopted  to  disfranchise 
the  negro  population  and  some  of  the  poorer  whites.  Others  who 
fiercely  denounced  the  court  of  appeals,  which  had  sustained  the 
constitutionality  of  the  proscription  laws,  at  the  same  time  criti- 
cised the  constitution  because  it  gave  to  the  legislature  the  power 
to  remove  judges.  But  perhaps  the  most  unique  argument  in  favor 
of  a  new  constitution  appeared  in  the  Martinsburg  Statesman  whose 
editor,  apparently  unconscious  that  the  thirteenth  and  fourteenth 
amendments  had  preceded  the  fifteenth  amendment  to  the  consti- 
tution of  the  United  States,,  declared  in  bold  type,  perhaps  only 
for  negro  consumption,  that  under  the  existing  state  constitution 
slavery  could  still  exist  in  West  Virginia  after  the  repeal  of  the 
fifteenth  amendment  by  Congress  (!)  which  he  expected  to  be 
done  soon  ( ! ) ;  and  he  undertook  to  inform  the  colored  voters 
that  if  they  should  oppose  the  call  for  a  convention  they  would  be 
voting  to  retain  a  constitution  which  still  recognized  them  as 
slaves.«2 

On   August   24,    1871,  the  people   determined  the  question  in 
favor  of  a  new  constitutional   convention  by  a  vote   of   30,220   to 


62.  Wheeling  Intelligencer,  Aug-.  10,  12,  14,  16,  18,  19  and  22, 
containing  clippings  from  Wellsburg  News,  Parkersburg  Journal,  Point 
Pleasant  Register,  and  Jefferson  County  Register. 


30  Studies  in  West  Vieginia   History. 

27,638  (17,571  not  voting).  All  the  largest  centers  of  population, 
except  Martinsburg,  voted  in  the  negative.  The  big  majorities  for 
the  convention  were  from  localities  in  which  there  was  a  large  ex- 
Confederate  element — from  the  counties  of  Jefferson,  Hampshire, 
Hardy,  Greenbrier,  Logan,  Gilman  and  Braxton. 63 

The  Democratic  strength  was  again  shown  in  the  following 
October,  at  which  time  the  Democrats  elected  sixty-six  of  the 
seventy-eight  members  of  the  convention.  The  twelve  Republican 
members  they  humorously  called  the  "twelve  apostles." 

Meeting  on  January  16,  1872,  the  convention  remained  in 
session  for  eighty-four  days,  at  Charleston,  then  a  village  with  un- 
paved  and  unlighted  streets  and  shut  off  from  the  mails  for  three 
days  at  a  time.  It  declined  to  accept  the  invitation  to  adjourn 
to  Wheeling  with  free  transportation.  The  radicals  felt  that  noth- 
ing good  in  the  shape  of  constitutional  reform  could  be  accomp- 
lished in  that  "iron  hearted  city"  in  which  had  been  framed  the 
first  constitution  to  which  they  were  so  strongly  opposed;  and 
many,  no  doubt,  were  influenced  by  the  fact  that  the  "best  livers 
of  Charleston"  had  thrown  open  their  homes  to  the  members  of 
the  convention  who  would  have  been  compelled  to  seek  boarding 
houses  in  Wheeling.^ 

Strong  efforts,  made  by  the  radical  reactionaries,  to  keep  West 
Virginia  under  the  influence  of  the  life  and  institutions  of  Virginia 
and  the  South,  were  resisted  by  the  more  moderate  members.  On 
January  20,  Mr.  George  Davenport,  a  liberal  young  Democrat  from 
Wheeling,,  wishing  to  show  the  ex-Confederates  that  the  Union 
Democrats  were  unalterably  opposed  to  the  manner  in  which  they 
were  "running  the  convention,"  presented  a  sarcastic  resolution  re- 
questing that  the  names  of  Grant  and  Lincoln  counties  should  be 
changed  to  Davis  and  Lee.  A  few  days  later,  some  radical  mem- 
bers made  themselves  rather  ridiculous  by  opposing  the  first  pro- 
vision of  the  constitution  which  declared  that  the  constitution  ot 
the  United  States  is  the  supreme  law  of  the  land.  Ward,  of 
Cabell,  on  this  question  announced  that  he  believed  in  the  reserved 
rights  of  states  and  Col.  Johnson  of  Tyler  objected  to  the  clause 
because  it  ignored    the    "heaven    born    right    to    revolutionize. "«* 


63.  Wheeling   Intelligencer,   Aug.    30,    1871. 

64.  Kanawha  Daily,  Jan.  19,  1872.  A  complete  file  of  the  Kanawha 
Daily  (the  only  daily  published  in  Charleston  during  the  convention) 
containing  the  most  complete  account  of  the  debates  that  can  be 
found,  is  in  the  possession  of  the  Department  of  Archives  at  Charleston. 

65.  Journal  of  Constitutional  Convention  of  West  Virginia,  1872,  p. 
34;  Kanawha  Daily,  Feb.  8,  and  Wheeling  Intelligencer,  Jan.  25,  Feb.  7 
and  26,  1872. 


Evolution  or  the  Constitution.  31 

After  the  early  sessions  of  the  convention,  the  efforts  of  the  more 
radical  reactionaries  were  somewhat  neutralized  by  the  more 
liberal  and  modern  Democrats  who  feared  that  the  ex-Confederate 
element  of  the  party  would  force  into  the  constitution  provisions 
which  might  defeat  it  before  the  people.  Some,  observing  how 
vigorously  many  members  rode  the  hobby  of  economy,  feared  they 
would  adopt  a  constitution  intended  not  so  much  to  benefit  the 
people  as  to  save  money.  The  radical  as  well  as  the  economic 
spirit  of  the  members  was  shown  in  the  great  squabble  which  arose 
on  January  22,  after  Mr.  Farnsworth  of  Upshur  made  a  customary 
and  appropriate  motion  that  the  United  States  flag  should  be 
placed  over  the  convention  hall  while  the  convention  was  in 
session.ee 

The  new  constitution  exhibited  the  marks  of  the  period  of 
partisanship  which  preceded  it.  Due  to  this  feeling  was  the  inser- 
tion of  provisions  which  made  martial  law  unconstitutional,  pro- 
hibited the  denial  of  the  right  to  vote  to  any  citizen  on  the  ground 
that  his  name  had  not  been  registered,  and  forbade  the  legislature 
to  establish  or  authorize  a  board  or  court  of  registeration.  The 
same  feeling  was  reflected  in  the  declaration,  found  in  no  other 
state  constitution,  that  political  tests  which  require  persons,  as  a 
prerequisite  to  the  enjoyment  of  their  civil  and  political  rights,  to 
purge  themselves  by  their  own  oaths  of  all  past  offences,  are  re- 
pugnant to  the  principles  of  a  free  government.  Several  new  sec- 
tions quoted  from  the  Virginia  constitution  of  1851  and  consist- 
ing of  glittering  generalities  on  the  equality  of  man,  the  sovereignty 
of  the  people  and  the  inalienable  right  of  the  majority,  were  also 


66.  .After  Farnsworth's  motion,  Ward,  who  it  was  jocularly  said  was 
perhaps  best  known  for  his  magic  ointment  and  scalp  wash,  moved  to 
strike  out  "United  States  n>sr"  and  insert  the  "flag  of  West  Virginia,'' 
arguing  that  his  first  allegiance  was  to  his  state.  After  a  futile  at- 
tempt to  lay  on  the  table,  Farnsworth's  motion  was  adopted,  but  the 
weighty  question  was  reconsidered  on  January  24,  and  25,  when  Col. 
Johnson  wished  to  amend  the  resolution  so  that  it  would  provide  for 
inscribing  on  the  flag  the  words  "West  Virginia  rescued  from  tryanny." 
"In  1861,"  added  Hagan,  who  rose  from  the  opposite  side.  But  while 
various  members  were  debating  the  probable  expense  which  would  be 
incurred  by  the  purchase  of  a  flag.  Mr.  Henry  Pike  who,  looking  after 
coal  land  in  that  region,  happened  to  be  present  solved  the  question 
by  offering  a  flag  as  a  gift  to  the  convention.  Whether  or  not  Pike's 
offer  was  out  of  pure  generosity  or  not,  the  convention  accepted  it, 
voted  its  thanks  to  Mr.  Pike,  and  ordered  the  sergeant  at  arms  to  raise 
the  flag  over  the  convention.  On  February  19  the  flag  arrived,  and 
after  it  was  seized  upon  frantically  by  the  twelve  apostles  and  kissed 
by  some  of  them  it  was  hoisted  over  the  convention  hall.  [Journal,  pr>. 
43,  44,  57,  62-64,   73,  and  115.] 


32  Studies   in   West   Virginia   History. 

introduced  into  the  bill  of  rights  as  finger-boards  to  commemorate 
the  proscriptive  laws  of  the  Republican  party. 67 

The  qualification  for  suffrage  under  the  clause  of  the  constitu- 
tion of  1863  was  changed  in  two  ways:  by  the  omission  of  the 
word  "white"68  to  make  it  conform  to  the  fifteenth  amendment, 
and  by  increasing  residence  in  the  district  from  thirty  to  sixty 
days.  The  proposition  to  omit  the  word  "white"  from  the  clause 
on  suffrage  called  forth  lengthy  debate  before  it  was  finally  car- 
ried. Mr.  Maslin  of  Hardy,  expressing  the  wish  that  his  arm  might 
be  palsied  in  any  attempt  to  strike  out  the  word  "white,"  said  that 
with  the  exception  of  those  who  had  been  re-enfranchised  by  the 
Flick  amendment  the  legal  voters  were  "carpet  baggers,  negroes, 
mulattoes,  Chinese,  Dutch,  Irish,  coolies,  Norwegians,  scalawags, 
with  a  few  of  the  native  population  of  the  country."  It  was  his 
purpose,  he  said,  to  give  the  latter  more  protection.  Mr.  Thomp- 
son of  Putnam  desired  to  cut  off  "that  hideous  tail"  to  the  constitu- 
tion (the  fifteenth  amendment),  and  to  provide  for  such  an  emerg- 
ency he  urged  the  retention  of  the  word  "white."  He  did  not  con- 
sider that  the  negroes,  who  he  said  claimed  every  species  of  artifi- 
cial rights  in  addition  to  natural  rights,  were  quite  as  capable  of 
self  government  as  the  buffaloes  of  the  plains  which  had  only 
their  natural  rights  to  protect. e» 

Different  views  in  the  convention,  in  regard  to  the  best  method 
for  the  expression  of  the  popular  vote,  resulted  in  a  peculiar  pro- 
vision which  exists  in  no  other  state™  and  which  leaves  the  voter 
free  to  select  open,  sealed  or  secret  ballot.  The  opposition  to  the 
secret  ballot  was  strong.  Ward,  asserting  that  the  ballot  system 
had  given  a  great  deal  of  trouble  to  the  world,  and  Samuel  Price, 
of  Greenbrier  (lieutenant  governor  of  Virginia  under  the  Confed- 
eracy, and  president  of  the  convention),  said  that  the  people  of 
their  counties  favored  the  viva  voce  system  of  voting.  Mr.  Martin, 
with  face  toward  the  East,  lamented  that,  although  fifteen  years 
before  in  old  Virginia  the  right  to  vote  had  been  regarded  as  the 
most  sacred  one  known  to  man,  "now-a-days  the  voter  sneaks  up 
drops  a  litle  slip  of  paper  through  a  hole  in  a  door  and  then  goes 


67.  Poore,  vol.  2,  pp.  1993  et  seq.;  Stimson:  Federal  and  State  Con- 
stitutions of  the  United  States,  p.  213;  Wheeling  Intelligencer,  April  12, 
1872. 

68.  Although  the  constitution  makes  no  distinction  between  white 
and  colored  in  the  exercise  of  the  elective  franchise  nor  in  the  holding 
of  office,  it  provides  that  white  and  colored  children  are  not  to  be 
taught  in  the  same  school. 

69.  Kanawha   Daily,    Feb.    16,    1872. 

70.  Stimson,    p.    217. 


Evolution  of  the  Constitution.  33 

away  lively  as  though  he  had  done  something  he  was  ashamed  of." 
All  the  more  liberal  democrats,  however,,  fearing  that  a  provision 
for  viva  voce  voting  would  defeat  the  constitution,  secured  a  vote 
of  36  to  29  against  it.  Twenty-four  members  insisted  that  at  least 
the  voter  ought  to  be  required  to  put  his  name  on  the  back  of  his 
ballot,  and  were  able  to  secure  the  compromise  clause  which  was 
finally  adopted. « 

The  legislature  was  required  to  meet  in  biennial  sessions  of 
not  longer  than  45  days  unless  two-thirds  of  the  members  concurred 
in  extending  the  session.  The  members  of  the  house  of  delegates 
were  chosen  for  a  term  of  two  years;  and  the  senators,  half  of 
whom  were  elected  biennially,  were  chosen  for  a  term  of  four  years. 
Representation  was  based  on  population.  Although  in  ,a  few  in- 
stances the  convention  in  laying  out  the  senatorial  and  judicial  dis- 
tricts was  accused  of  gerrymandering,  the  larger  state  papers  do 
not  reflect  any  serious  discontent.  The  list  of  persons  debarred 
from  seats  in  the  legislature  was  enlarged  by  the  inclusion  of  per- 
sons holding  lucrative  offices  under  foreign  governments,  members 
of  congress,  sheriffs,  constables  or  clerks  of  courts  of  record,  per- 
sons convicted  of  bribery,  perjury  or  other  infamous  crimes,  and  all 
salaried  officers  of  railroad  companies. 

On  the  latter  debarment,  peculiar  to  West  Virginia,"  there 
was  much  debate.  The  attitude  toward  railroads  at  Charleston 
had  greatly  changed  in  the  ten  years  since  the  convention  in 
Wheeling  in  which  Van  Winkle  of  Wood,  advocating  the  dropping 
of  bank  officers  from  the  disqualified  list,  had  clinched  his  argu- 
ment and  won  the  convention  by  saying  that  it  might  just  as  con- 
sistently proscribe  railroad  officers  as  bank  officers.  The  growth 
of  railroad  influence  produced  anti-railroad  sentiment  in  some  sec- 
tions of  the  state.  It  was  sneeringly  said  that  the  young  common- 
wealth should  be  called  the  state  of  the  Baltimore  and  Ohio  Rail- 
road. Farnsworth,  whose  policy  was  to  grant  to  big  corporations 
no  liberal  franchises  which  worked  to  the  detriment  of  land  owners, 
declared  his  fear  that  the  entire  state  would  soon  be  under  the 
control  of  the  Baltimore  and  Ohio  railway  which  by  means  of  its 
through  connections,  he  said,  diverted  to  the  west  the  immigrants 
who  otherwise  might  stop  in  West  Virginia.  Among  those  who 
opposed  the  disqualification  of  men  who  had  been  active  in  improv- 
ing means  of  locomotion  was  Mr.  Hagan  who — after  recalling  the 
times  not  so  remote  in  which  they  had  carried  deer  skins  on  their 
backs  to  Philadelphia  and  had  drunk  sassafras  tea  six  months  of 

71.  Journal,    pp.    26    and    176;    Kanawha   Daily,   Feb.    16,    1872. 

72.  Stimson,   p.   203. 


34  Studies   in   West  Virginia   History. 

the  year  because  they  could  not  get  store  tea — said  that  without 
railroads  residence  in  West  Virginia  would  be  abomt  as  desirable 
as  residence   at  the  North   Pole. ?* 

The  legislature  was  forbidden  to  pass  special  acts  in  a  long 
list  of  additional  cases  including  the  following:  sale  of  church 
property  or  property  held  for  charitable  uses;  locating  or  changing 
county  seats;  chartering,  licensing,  or  establishing  ferries;  remit- 
ting fines,  penalties  or  forefeitures;  changing  the  law  of  descent; 
regulating  the  rate  of  interest  and  releasing  taxes.  By  this  com 
stitution  the  state,  in  addition  to  the  prohibition  of  1863  which 
prevented  it  from  holding  stock  in  any  bank,  was  prohibited  from 
holding  stock  in  any  company  or  association  in  the  state  or  else- 
where, formed  for  any  purpose  whatever. 

The  only  new  power  given  to  the  legislature  (a  power  which 
remained  inoperative  for  thirteen  years)  was  that  of  taxing  priv- 
ileges and  franchises  of  corporations  and  persons  which  in  the  con- 
situation  of  1863  had  been  witheld  largely  through  the  fear  that  a 
corporation  tax  would  discourage  corporate  capital  which  was  then  so 
much  needed  to  build  up  the  new  state. 

The  governor  and  all  the  executive  officers  were  to  serve  for 
four  years,  and,  with  the  exception  of  the  secretary  of  state,  were 
to  be  elected  by  the  people.  No  lieutenant-governor  was  provided. 
In  case  the  governor  was  unable  to  act,  the  duties  fell  upon  the 
president  of  the  senate  or  the  speaker  of  the  house;  and,  if  neither 
should  be  qualified,  the  legislature  was  given  the  power  to  appoint 
unless  the  vacancy  should  occur  in  the  first  three  years  of  the  term, 
in  which  case  an  election  by  the  people  was  required. 7* 

The  judicial  system,  entirely  reorganized,  consisted  of  a  su- 
preme court  of  appeals,  a  circuit  court,  county  and  corporation 
courts  and  justices  of  the  peace.  The  supreme  court  of  appeals,  a 
rotary  body  consisting  of  four  judges  elected  by  the  people  for 
twelve  years,  could  render  no  decision  which  should  be  considered 
as  binding  authority  upon  any  inferior  court  except  in  the  particu- 
lar case  decided  unless  the  decision  was  concurred  in  by  three 
judges.  The  number  of  circuits  was  fixed  at  nine  and  a  provision 
forbade  the  legislature  to  increase  that  number  until  after  1880. 
After  much  debate,  in  which  Osburn  humorously  suggested  that 
there  was  no  way  out  of  the  difficulty  but  to  put  the  ofiice  up  to 
the  lowest  bidder,  the  salary  of  judges  of  the  supreme  court  of 
appeals  was  raised  from  $2000  to  $2250  and  of  circuit  judges  from 

73.  Kanawha  Daily,   Feb.   13   and   26,   1872. 

74.  This  provision  is  peculiar  to  West  Virginia.     Stimson,  p.  243. 


Evolution  of  the  Constitution.  35 

$1800  to  $2000J5  Abandoning  the  township  system,  the  conven- 
tion reestablished  the  antiquated  county  court  system — composed 
of  a  president  and  two  justices  with  its  police,  fiscal  and  judicial 
powers.  This  court  was  eulogized  by  Mr.  Haymond  of  Marion,  as 
the  guiding  star  to  younger  members  of  the  profession,  the 
"theater  upon  which  their  youthful  geniuses  might  disport  with  gay 
freedom  before  the  assembled  people."  Hagan  answered  this 
speech  by  suggesting  that  it  would  be  far  better  if  these  young 
lawyers  were  safely  housed  by  the  state  in  some  law  school  where 
they  would  not  afflict  the  public  with  such  a  "fraud  as  the  farce 
known  as  the  county  court  of  the  olden  times."  He  continued  by 
declaring  that  it  was  cruel  and  almost  criminal  to  impose  on  men 
who  had  never  read  a  law  book  in  their  lives  the  delicate  and 
difficult  tasks  of  adjusting  the  complex  questions  that  arise  in 
the  suits  that  come  before  them.  He  had  learned,  he  said,  that 
the  hapless  suitor  whose  attorney  could  not  boast  of  gray  hairs 
could  almost  copy  the  inscription  which  appeared  over  the  inferno, 
"He  who  enters  here  leaves  hope  behind,"  and  rewrite  it  at  the 
threshold  of  the  august  forum  of  the  county  court  for  it  mattered 
not  how  ably  a  case  might  be  put  by  the  young  lawyer,  nor  how 
much  law  he  might  bring  forward  to  sustain  it  until  it  was  as  clear 
as  a  sunbeam,  the  venerable  and  foxy  lawyer  had  but  to  refer  to  the 
"youth  and  inexperience  of  his  young  friend,"  and  close  with  a  few 
well  chosen  and  hackneyed  expressions  about  the  "good  sense" 
and  profound  judgment  of  the  court,  when  lo!  the  heads  went  to- 
gether for  an  incredibly  short  time  and  with  a  wave  of  the  hand  it 
was  "judgment  for  the  defendant,  Mr.  Clerk."™ 

Although  the  question  of  the  Virginia  debt  arose  in  the  con- 
vention, and  Mr.  Willey  advocated  the  adoption  of  some  addition 
to  the  clause  of  the  constitution  of  1863  relating  to  it  so  that  there 
would  remain  no  shadow  of  a  question  as  to  West  Virginia's  in- 
tention to  assume  her  equitable  proportion  of  the  debt,  the  con- 
stitution omitted  the  entire  clause.  This  was  regarded  by  many  as 
repudiation. 

The  antiquated  clauses  of  the  constitution  which  relate  to 
the  forfeiture  of  land  may  be  regarded  as  a  monument  to  a  mis- 


75.  Kanawha  Daily,  March  27,  1872.  (In  the  convention  of  1861-62, 
Harmon  Sinsel,  urging  the  strictest  economy  in  the  finances  Of  the  new 
state  and  stating  that  respectable  families  could  live  on  $500  a  year, 
advocated  small  salaries  for  judges  partly  on  the  ground  that  men  liked 
the    honor    of    the    office.)      [Hall,    MS.,    Jan.    24,    1862.] 

76.  Kanawha  Daily,  March    8,   1872. 


36  Studies  in  West  Virginia   History. 

take  of  the  dead  but  living  past. 77  Originating  with  a  purpose  to 
quiet  titles  and  reduce  litigation  they  are  still  a  prolific  source  of 
expensive  litigation  and  lawyers  familiar  with  the  abuses  and  ob- 
jectionable features  of  their  operation  have  recently  advocated  their 
abolition  in  the  interest  of  a  less  complex  system  of  land  laws  if 
it  can  be  done  with  injustice  to  none  and  without  unsettling  land 
titles.  The  adoption  of  a  rational  system  for  the  registration  and 
transfer  of  land  titles  is  much  needed. 

The  clause  of  the  constitution  of  1863  requiring  an  amend- 
ment proposed  by  one  legislature  to  be  approved  by  the  next  before 
it  was  submitted  to  the  people  was  omitted  from  the  constitution 
of  1872. 

Although  the  new  constitution  which  was  ratified  by  a  ma- 
jority of  only  4567,  made  some  wise  changes — lengthening  the 
term  of  state  executive  officers  to  four  years,  doubling  the  terms 
of  members  of  each  house  of  the  legislature  and  providing  foi 
biennial   legislatures — it   contained   several   restrictions,   inhibitions 


77.  West  Virginia  at  the  beginning  of  her  history  inherited  the  con- 
fusion of  land  titles  which  had  resulted  from  the  mistakes  made  by 
the  mother  state  in  the  early  years  of  our  national  existence  when  she 
had  urgent  need  of  revenue  to  suport  her  government.  The  earlier 
failure  to  secure  either  revenue  or  much  desired  barrier  settlements  in 
the  west,  by  the  statute  of  1779  which  placed  public  lands  on  the  market 
at  a  fixed  charge  of  forty  pounds  for  each  one  hundred  acres  (a  price 
which  proved  too  high  for  the  hunter-farmer  of  the  frontier),  induced 
the  legislature  in  December  1792,  with  the  expectation  of  increasing 
revenues  from  land  taxes,  to  offer  western  lands  for  sale  at  the  merely 
nominal  price  of  two  cents  per  acre — an  offer  which  in  the  next  decade 
resulted  in  the  acquisition  of  almost  all  the  territory  of  western  Vir- 
ginia, principally  in  large  grants  often  reaching  a  million  acres  In  A 
single  tract,  by  speculators  who  neither  became  residents  on  the  land 
nor  paid  taxes  thereon.  Much  confusion  resulted  from  the  methods  by 
which  the  grants  were  located.  Without  adequate  returns  from  the 
lands  to  enable  her  to  supervise  the  location  and  survey  of  the  lands 
sold,  the  state  allowed  every  buyer  to  establish  his  own  boundaries(!) ; 
and  later,  when  she  reluctantly  and  gradually  entered  upon  the  policy 
of  forfeiting  titles  for  non-payment  of  taxes,  she  first  found  many 
boundary  disputes  and  subsequently  discovered  that  many  tracts  had 
never  been  entered  upon  the  commissioners'  book  for  assessment. 
Finally,  forced  by  the  stern  fact  that  the  settlement  of  western  Vir- 
ginia by  those  who  were  willing  to  brave  the  dangers  and  bear  the 
inconveniences  of  the  frontier,  was  retarded  by  the  fear  of  the  insecur- 
ity of  ownership  of  the  soil  upon  which  settlers  might  erect  their 
humble  homes,  the  Virginia  legislature  in  1831  and  in  1835  passed  two 
acts  which  provided  for  the  forfeiture  of  titles  returned  delinquent  (and 
not  redeemed)  and  for  the  protection  of  pioneer  settlers — acts  which 
were  lineal  ancestors  of  sections  three  and  six  of  article  thirteen  of  the 
West  Virginia  constitution  of  1872.  The  Virginia  legislature,  though 
it    showed    a    growing    tendency    to    forfeit    titles    for    non-payment    of 


Evolution  of  the  Constitution.  37 

and  imperfect  provisions  which  have  retarded  or  prevented  gov- 
ernmental adjustments  and  have  been  criticised  by  leading  men  of 
both  parties.  Though  some  of  these  have  been  changed,  others  still 
remain. 

Amendments  have  been  submitted  and  ratified  by  the  people 
at  four  different  times.  The  first  effort  to  appease  the  clamor 
for  amendment  was  made  in  1879  when  the  legislature  proposed 
two  amendments  which  were  ratified:  (1)  an  entire  revision  of 
the  article  on  the  judiciary  increasing  the  number  of  circuit  courts 
from  nine  to  thirteen  (and  providing  that  the  number  of  circuits 
might  be  increased  or  diminished  after  1888)  and  increasing  the 
number  of  terms  in  each  county  from  two  to  three,  and  abolishing 
the  county  court  system  but  still  retaining  the  name  -for  its  suc- 
cessor— a  police  and  fiscal  board  of  three  commissioners  for  the 
administration  of  county  affairs;      (2)   a  change  in  section  thirteen 


taxes  and  to  favor  pioneer  settlers  who  paid  the  taxes,  hesitated  to  for- 
feit a  title  absolutely;  and  from  time  to  time  it  passed  numerous  acts 
granting-  former  owners  of  forfeited  lands  additional  time  to  redeem 
them,  and  it  never  transferred  a  title  to  a  claimant  who  had  no  claim 
of  title  derived  from  the  commonwealth. 

West  Virginia  in  her  first  constitution  adopted  the  growing  policy 
of  the  mother  state  in  regard  to  forfeitures,  and  again  temporized  with 
tho  delinquent  tax  payer,  but  made  a  distinct  advance  by  a  provision 
which  for  the  first  time  showed  a  disposition  to  favor  the  owner  of  a 
small  tract  whose  delinquent  taxes  did  not  exceed  $20.  In  a  statute  of 
1869,  her  legislature  provided  for  the  proper  entry  of  all  land  and  im- 
posed forfeiture  as  a  penalty  for  failure  to  enter  land  on  the  books 
for  a  period  of  five  years,  but  allowed  the  owner  to  redeem  it  within 
a  year.  The  members  of  the  convention  of  1872  inserted  in  the  consti- 
tution provisions  which  prevented  any  further  temporizing  with  the 
question  of  forfeiture  of  tracts  of  unassessed  land  containing  1,000  acres 
or  more  and  extending  the  transfer  of  a  forfeited  title  to  persons  who 
had  actual  possession  for  a  term  of  years  and  had  paid  taxes  charged 
on  the  land  for  five  years.  In  1873  an  act  of  the  legislature  (still  in 
force)  provided  for  the  forfeiture  after  five  years  of  all  tracts  of  non- 
assessed  land  of  less  than  1,000  acres.  [Hening,  vol.  10,  p.  82;  Acts  of 
V;r«inia  1831,  pp.  S7-97;  Acts  of  Virginia  1835,  p.  7;  Code  of  Virginia 
1849,  p.  494;  West  Virginia  Acts  1872-73,  p.  450].  The  tendency  of  this 
system  to  breed  litigation  is  well  illustrated  by  the  fact  that  there  are 
now  on  the  docket  of  the  circuit  court  of  McDowell  county  thirty-seven 
suits  by  the  state  for  the  sale  of  forfeited  lands,  and  in  the  larger 
part  of  these  suits  there  are  from  ten  to  thirty  tracts  of  land  involved. 
These  suits  frequently  result  from  the  efforts  of  individuals  who  take 
an  unfair  advantage  of  the  forfeiture  clauses  of  the  constitution  in  the 
litigation  of  their  claims.  They  impose  upon  the  state  the  burden  of 
proof,  and  they  assume  no  responsibility  for  the  costs  of  the  suits. 
The  parties  behind  this  litigation,  in  many  cases,  would  have  no  stand- 
ing in  court  if  forced  into  a  suit  in  ejection.  [Proceedings  of  the  West 
Virginia  Bar  Association,   1908,  pp.   66-75.     Paper  by  W.  W:  Hughes.] 


38  Studies  in  West   Virginia   History. 

of  the  bill  of  rights  providing  for  a  trial  by  a  jury  of  six  in  suits 
at  common  law  before  a  justice  when  the  value  in  controversy 
should  exceed  $20.™  In  1883  the  legislature  submitted  an  amend- 
ment, which  was  ratified,  changing  the  time  of  state  elections  to 
coincide  with  the  day  on  which  the  federal  elections  are  held.™ 

With  a  hope  of  removing  or  reducing  the  many  evils  which 
still  existed,  the  legislature  of  1879  appointed  a  non-partisan  (bi- 
partisan) joint  committee  to  suggest  needed  revisions  of  the  state 
constitution.  In  an  elaborate  report,  this  committee  suggested 
many  needed  changes,  five  of  which  have  since  been  adopted.  In 
1901,  the  legislature  proposed  amendments,**0  which  were  ratified 
by  the  people,  limiting  the  invested  school  fund  to  $1,000,000, 
requiring  the  legislature  to  provide  for  the  registration  of  all 
voters,  making  the  office  of  secretary  of  state  elective  under  the 
same  provision  as  the  other  state  executive  officers,  providing  that 
the  salaries  of  all  these  officers  shall  be  established  by  statute 
and  that  all  fees  liable  by  law  for  any  service  performed  by  these 
officers  shall  revert  to  the  treasury,***  and  increasing  the  number  of 

78.  The  working  of  justices'  jury  was  not  always  satisfactory;  and 
in  1897,  after  sundry  decisions  of  the  supreme  court,  the  legislative 
committee  on  the  revision  of  the  constitution,  in  order  to  avoid  the 
necessity  of  recording  evidence  in  a  jury  trial  before  a  justice  or  of 
taking  bills  of  exceptions  to  the  rulings  and  conduct  of  the  justice, 
and  with  the  idea  that  the  judgment  of  a  justice  upon  the  verdict  of  a 
jury  should  not  be  final  and  binding  as  the  judgment  of  a  court  of 
record  uoon  a  verdict  in  such  court,  proposed  to  add  to  section  thirteen 
of  the  bill  of  rights  a  provision  in  such  a  case  for  an  appeal  to  the 
circuit  court  for  re-trial,  both  as  to  law  and  fact,  under  such  regula- 
tions as  the  legislature  might  prescribe.  (Rp.  Sp'l.  Joint  Com.,  1897, 
pp.   20  and  78). 

79.  West  Virginia  Acts   1879,   pp.   72-76;   Ibid.    1883,   pp.   61-63. 

80.  West   Virginia   Acts,    1901,    pp.    472,    459,    462,    and    465. 

81.  This  turned  a  considerable  sum  into  the  treasury.  The  fees  de- 
rived from  the  office  of  secretary  of  state  and  auditor  were  variously 
estimated  from  $10,000  to  $15,000  per  year.  The  committee  also  sug- 
gested amendments  providing  for  the  election  of  a  county  treasurer  to 
collect  the  taxes  of  the  county,  and  for  the  payment  of  salaries  to 
county  officers  in  place  of  fees  which  should  then  revert  to  the  treas- 
ury. Those  in  favor  of  the  abolition  of  the  fee  system  in  payment  of 
county  officers  argued  that  the  fees  collected  by  almost  every  county 
officer  amounted  to  more  than  a  just  compensation  for  the  officer's 
services  and  more  than  he  would  receive  if  he  were  paid  a  fixed  salary, 
and  that  the  cost  of  administering  county  government  had  become  bur- 
densome and  oppressive  to  the  people.  The  demand  for  reform  be- 
came so  strong  that  the  legislature  in  1908  passed  a  counties  salaries 
bill.  Notwithstanding  the  name  of  this  bill,  the  fee  svstem  in  payment 
for  county  officers  is  not  entirely  abolished,  and  there  is  much  demand 
for  complete  abolition  of  the  abuses  that  exist  under  the  present  sys- 
tem.     [The  Bar,  March   (pp.  4-6)   and  April   1908   (pp.   5-8).] 


Evolution  of  the  Constitution.  39 

members  of  the  supreme  court  of  appeals  from  four  to  five — whose 
salaries,  together  with  the  salaries  of  the  circuit  judges,  were  to  he 
fixed  thereafter  by  statute  instead  of  by  the  constitution.  In  ad- 
dition to  the  adopted  amendments  which  had  been  suggested  by 
the  legislative  committee,  the  people  have  since  ratified  (1908) 
two  other  amendments — one  of  which  increased  the  pay  of  com- 
missioners of  the  county  court  in  order  to  secure  more  competent 
men,  and  the  other  amended  section  four,  of  article  four,  of  the 
constitution  so  that  it  no  longer  prohibited  the  appointment  to 
office  (state,  county,  or  municipal)  of  persons  who  are  not  citizens 
entitled  to  vote  in  the  state. 

The  committee  of  1897  proposed  other  amendments  which  al- 
though, many  of  them  have  seemed  desirable,  have  never  secured 
the  approval  of  the  legislature.  Among  these  recommended,  for 
which  there  seems  to  be  a  rather  general  demand,  is  that  proposing 
+hat  the  legislators  should  receive  "$4.00  a  day  for  actual  attend- 
ence  for  a  period  not  to  exceed  60  days  at  any  regular,  and  40 
flays  at  any  special  session,"  and  another  suggesting  that,  in  order 
to  secure  more  deliberate  consideration  of  bills,  no  bill  should  be 
introduced  into  the  legislature  after  the  fortieth  day  of  the  regular 
session.  The  committee  also  suggested  that  the  provision  which 
limits  the  jurisdiction  of  inferior  courts  to  a  single  county  should 
be  made  more  flexible  in  order  to  meet  the  growing  necessity  of 
development,  and  proposed  that  the  constitution  should  leave  the 
creation  of  such  courts  to  legislative  discretion  and  judgment.  It 
also  urged  that,  in  order  to  prevent  the  great  traffic  in  votes  that 
exists  under  the  constitutional  method  of  voting,  the  mode  of 
voting  should  be  exclusively  by  secret  Australian  ballot.®2  To  se- 
cure this  change  it  would  be  necessary  to  omit  the  antiquated 
clause  which  provides  that  "the  voter  shall  be  left  free  to  vote  by 
either  open,  sealed  or  secret  ballot  as  he  may  elect."  Finally,  it 
proposed  to  equalize  taxation  (1)  by  an  exemption  on  real  estate 
against  which  there  was  a  lien  for  debt  of  purchase,  (intended 
chiefly  to  benefit  the  farming  classes  who  were  paying  more  than 
their  fair  proportion  of  the  taxes),  and  (2)  by  giving  the  legis- 
lature power  to  tax  "business"  (in  addition  to  privileges  and  fran- 
chises) with  the  special  purpose  of  reaching  the  intangible  pro- 
perty of  corporations  and  large  enterprises  which  had  escaped  tax- 
ation, or  paid  only  a  small  amount  of  their  fair  proportion  estim- 
ated on  the  basis  of  wealth. 

In    1903,    Governor    White,    suggesting    the    need    of    a    constitu- 
tional convention  said:      "Our  constitution  creaks  at  almost  every 

82.     Report  of  Joint  Committee,  8?  pages. 


40 


Studies  in  West   Virginia   Histoby. 


joint. "s3  Governor  Dawson  especially  urged  the  need  of  reform  in 
the  size  of  senate — which  can  be  most  effectively  accomplished  by 
a  constitutional  clause  providing  for  representation  of  each  county 
in  the  senate  by  a  senator  chosen  by  the  voters  of  that  county. 
There  has  been  a  growing  feeling  that  the  size  of  the  senate  should 
be  increased  and  that  there  should  be  some  early  change  in  the 
present  system  of  choosing  senators  under  which  it  is  possible  for 
eight  counties  to  control  the  majority  of  the  senate.  Again,  both 
the  legislative  and  the  executive  branches  of  the  state  government 
have  recognized  the  inadequacy  of  the  present  organic  law  as  a 
means  of  solving  modern  economic  problems  relating  to  taxation 
and  the  proper  regulation  of  public  service  corporations.  Although 
the  need  of  a  new  constitution  has  been  suggested  recently  by 
Governor  Glasscock,  and  although  many  recognize  that  a  constitu- 
tional convention  would  be  the  best,  cheapest  and  surest  solution 
of  the  problems — especially  social,  economic  and  financial — which 
have  resulted  largely  from  the  recent  rapid  industrial  development 
of  the  state,  many  conservative  leaders  still  prefer  what  they  con- 
sider the  less  expensive  method   of   "patchwork"   amendments. »* 


83.  Governor  White's  message  to  the  legislature,  January  14, 

84.  Morgantown    Post-Chronicle,    May    10,    1999. 


1903. 


BRIEF  NOTICES  OP  SOME  NEW  BOOKS. 


The  Law  of  the  Federal  and  State  Constitutions  of  the  United 
States. — By  F.  J.  Stimson.  (Boston  Book  Company,  386  pages).  An 
historical  study  in  constitutional  law  and  principles  and  a  comparative 
digest  of  the  constitutions  of  the  forty-six  states.  A  timely  and  val- 
uable book  on  "a  live  science"  especially  suitable  for  the  use  of  the 
citizen  and  the  student  of  politics.  It  especially  aims  to  give  the 
history,    origin    and    present    tendency    of    American    constitutions. 

Life  and  Letters  of  George  Bancroft. — By  M.  A.  DeWolfe  Howe. 
(Charles  Scribner's  Sons,  New  York,  2  vols.,  $4.00  net.)  These  well- 
edited  volumes  based  largely  upon  his  private  correspondence  shed 
authentic  light  upon  the  character  of  a  man  whose  literary  ideal  was 
to  produce  an  historical  epic  of  democracy  and  who  in  varied  fields 
rendered  distinguished  service  to  his  country  and  his  time.  In  a  series 
of  nine  interesting  chapters  the  author  has  treated  the  chief  periods 
in  Bancroft's  career:  boyhood,  preparation  at  home  and'  abroad,  be- 
ginnings of  his  interest  in  politics  and  history,  secretary  of  the  navy, 
minister  to  England,  citizen  of  New  York,  minister  at  Berlin,  and  the 
final  years  at  Washington.  To  these  the  author  adds  a  chapter  on 
his  conclusions  and  a  bibliography  of  Bancroft's  books  and  pamphlets. 

America  the  Land  of  Contrasts. — By  J.  F.  Muirhead.  (The  John 
Lane  Co.,  New  York).  A  Briton's  view  of  his  American  kin.  An  en- 
tertaining, practical  and  instructive,  impartial  and  sympathetic  survey 
of  the  social,  economic,  political,  moral  and  religous  condtions  in  the 
United  States.  Interspersed  with  flashes  of  humor,  it  presents  the  lights 
and  shadows  of  American  society,  and  acute  and  interesting  reflections 
on  various  phases  of  American  life.  The  author  speaks  with  authority. 
He  is  the  general  editor  of  Baedeker's  guides  and  his  book  is  largely 
based  on  observation  made  throughout  the  United  States  in  1890-93 
in  the  preparation  of  Baedeker's  Handbook  to  the  United  States  of 
which  he  is  the  author.  His  wife  is  a  sister  of  Josiah  Quincy  and  he 
dedicates  his  later  book  "To  the  land  that  has  given  me  what  makes 
life  most  worth  living."  His  book  is  substantially  a  tribute  of  admira- 
tion— and  of  gratitude. 

The  Federal  Civil  Service  as  a  Career. — By  El  Bie  Kean  Foltz.  (G. 
P.  Putnam's  Sons,  New  York,  $1.50).  A  reliable  book  of  practical  facts 
on  the  working  of  governmental  machinery  concisely  and  clearly  ar- 
ranged and  suitable  especially  for  the  use  of  applicants  for  federal 
positions.  The  author  is  an  offica  holder  in  the  treasury  department 
at  Washington  and  writes  from  a  knowledge  of  facts  gathered  at  first 
hand. 

Readings  on  American  Federal  Government.— By  Paul  S.  Reinsch. 
(Ginn  &  Co.,  New  York,  $2.75).  A  collection  of  original  materials  suit- 
able for  use  in  the  study  of  the  institutions  and  the  processes  of  the 
Federal  government  by  the  case  method.  These  include  selections  on 
the  executive  and  congress,  the  treaty  making  power,  the  senate,  the 
conference  committees,  the  organization  of  the  house,  financial  legisla- 
tion, the  executive  departments,  legislative  and  administrative  prob- 
lems, the  army  and  navy,  the  foreign  service,  the  civil  service,  the 
courts  centralization  and  constitutional  changes  and  national  nominat- 
ing conventions. 


The  Good  Neighbor  in  the  Modern  City. — By  Mary  E.  Richmond. 
(J.  B.  Lippincott  Co.,  Philadelphia,  60  cents).  A  practical  book  for 
charity  workers,  treating  concretely  the  conditions  of  city  life  and 
the  principles  which  should  govern  the  giving  of  charitable  relief  to 
dependent  families  in  the  city.  In  detail  the  author  in  successive  chap- 
ters considers:  the  bad  conditions  and  remedial  agenices  that  surround 
the  child  in  the  city;  the  men  and  women  who  make  the  goods  we 
buy;  the  tenants  who  live  in  the  houses  we  build  and  rent;  the  home- 
less men  on  the  streets;  the  families  in  distress;  and  the  sick  who 
should  have  been  strong  and  well.  In  the  last  two  chapters  she  con- 
siders the  good  neighbor  (1)  as  a  contributor  to  charity  and  (2)  as 
a  church  member. 

The  Statesmanship  of  Andrew  Jackson  (as  shown  in  his  writings 
and  speeches.)  Edited  by  F.  N.  Thorpe.  (Tandy  Thomas  Co.,  New  York, 
$2.50).  A  collection  of  letters  and  documents  (many  of  which  have 
never  been  published  before)  selected  with  care  to  illustrate  in  detail 
all  the  different  aspects  of  Jackson's  public  policies — especially  in  re- 
lation to  nullification,  the  national  bank  and  the  public  domain.  The 
editor  has  added  a  scholarly  introduction  and  also  explanatory  notes 
to  serve  as  an  historical  background. 

America  at  College. — By  R.  K.  Risk.  (Archibald  Constable  &  Co., 
London,  3-6).  This  book,  the  result  of  a  recent  examination  of  a 
dozen  representative  universities  and  colleges  of  the  United  States, 
contains  a  series  of  brightly  written  chapters  describing  the  work 
and  life  of  these  institutions  and  comparing  and  appraising  their 
methods  in  order  to  throw  light  upon  problems  in  England  and  Scotland 
whose  people  the  author  believes  should  ponder  and  adapt  to  their 
uses  the  lessons  drawn  from  the  adventures  of  their  kinsmen  abroad. 
In  observing  the  American  system  of  higher  education  at  work  he  ap- 
parently fails  to  be  struck  by  the  "deficiency  of  pedagogic  intelligence" 
which  has  recentl3r  distressed  two  American  writers  on  American  col- 
lege organization  and  methods.  Though  deeply  impressed  with  the 
vast  resources  of  the  larger  American  universities,  after  a  visit  to 
both  Chicago  and  John  Hopkins  he  frankly  expresses  his  preference 
for  the  Hopkins  whose  business  he  says  is  higher  education  in  the 
most   exacting  sense   of  that   elastic   term, 

American  Supremacy. — By  George  W.  Crichfield.  (Brentano's,  New 
York,  2  vols.,  $6.00).  In  these  volumes,  the  author,  who  has  studied 
conditions  in  South  America  for  fifteen  years,  traces  the  rise  and  de- 
velopment of  those  republics  gives  some  attention  to  the  biographies 
of  their  leading  statesmen  and  especially  emphasizes  social,  economic 
and  political  tendencies  and  conditions  resulting  from  the  Monroe  doc- 
trine— a  doctrine  which  he  thinks  should  be  abrogated.  The  second 
volume  is  largely  devoted  to  a  critical  analysis  of  the  relations  of  the 
republics  to  foreigners,  and  especially  to  the  United  States,  under  the 
Monroe  doctrine,  closing  with  a  brief  survey  of  national  and  inter- 
national policies  in  relation  to  the  government  and  civilization  of 
Latin  America. 

A  First  Conrse  in  American  History. — By  Jeanette  R.  Hodgdon. 
(D.  C.  Heath  &  Co.,  Chicago,  2  vols.,  $1.30).  An  introductory  survey  of 
primary  events  of  American  history  through  biographies  (from  Lief 
Ericson  to  Thomas  A.  Edison  and  his  contemporaries),  suitable  for  use 
in  the  intermediate  grades.  The  first  volume  covers  the  periods  of 
discovery  and  colonization,  and  the  second  treats  the  national  period. 


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